Joseph Harper v. Jeremiah Davis ( 2014 )


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  •                Case: 13-13190       Date Filed: 07/11/2014      Page: 1 of 19
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-13190
    ________________________
    D.C. Docket No. 5:10-cv-00047-LGW
    JOSEPH HARPER,
    Plaintiff-Appellee,
    versus
    JEREMIAH DAVIS, et al.,
    Defendants-Appellants.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    ________________________
    (July 11, 2014)
    Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,* Judge.
    ___________________
    *Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
    designation.
    Case: 13-13190     Date Filed: 07/11/2014   Page: 2 of 19
    GOLDBERG, Judge:
    On a late spring night in 2008, officers Jeremiah Davis and Matthew
    Gourley tasered an inebriated suspect out of a tree. The suspect, Joseph Harper,
    careened to the ground headfirst, injured his back, and was rendered paraplegic.
    This case considers whether Davis and Gourley are liable for using excessive force
    to arrest Harper in violation of the Fourth Amendment of the U.S. Constitution.
    Harper brought suit against four officers, including Davis, Gourley,
    Christopher Perkins, and Rodney Courson, on May 19, 2010. Harper styled his
    federal constitutional claims under 42 U.S.C. § 1983 (2006) and also lodged state
    claims under Georgia’s constitution and statutes. Shortly thereafter, the defendants
    moved to dismiss. The district court granted the motion to dismiss state claims
    against Gourley but denied the motion as to all other claims. We affirmed in an
    unpublished opinion on February 29, 2012. Harper v. Perkins, 459 F. App’x 822
    (11th Cir. 2012).
    After discovery, the defendants moved for summary judgment. The district
    court granted the motion respecting federal claims against Courson and Perkins
    and all of Harper’s state claims. The court denied summary judgment, however,
    on Harper’s excessive force claim against Davis and Gourley. Harper v. Perkins,
    No. CV 510-047, 
    2013 WL 3048322
    , at *4−7 (S.D. Ga. June 17, 2013). These two
    defendants now appeal the district court’s decision and argue that they enjoy
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    qualified immunity from suit. We agree, reverse, and remand to the district court
    to enter judgment in Davis and Gourley’s favor.
    I. BACKGROUND 1
    A. Harper Fights with His Fiancée
    It was May 26th, 2008—Memorial Day Monday—and plaintiff Joseph
    Harper was grilling ribs. Mr. Harper, along with his fiancée Mary Crimmins, and
    their two sons, “Little” Joey and Johnny Ray, had gathered at the home of Harper’s
    sister Laverne in Douglas, Georgia for a late-afternoon barbeque. As he fussed
    with the meat, Harper drank about six bottles of Budweiser beer in a two- to three-
    hour stretch.
    Meanwhile, Crimmins wanted nothing more than to abandon the party,
    return home, and go to bed. She approached Harper to voice her complaint as he
    grilled. “I’m cooking; we can’t [go],” Harper replied, but Crimmins stood firm.
    She threatened that if Harper did not leave the barbeque now, Harper “could find
    [his] own way home.” At last the “angry and embarrassed” Harper caved to
    Crimmins’ demands and left Laverne’s house. He managed to extract one parting
    concession, however. Instead of going home immediately, the family would visit
    1
    “The court [must] grant summary judgment if the movant shows that there is no genuine
    dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
    R. Civ. P. 56(a). We view the evidence and resolve all reasonable doubts in favor of the
    nonmoving party. See Morton v. Kirkwood, 
    707 F.3d 1276
    , 1280 (11th Cir. 2013).
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    Eric Dibble—the cousin of Harper’s ex-wife Tracy Lynn—for a few more
    moments of holiday revelry.
    At Dibble’s, Harper and his cousin amused themselves with a game of pool
    and “a few shots of some kind of liquor.” Crimmins remained outside and
    smoldered on the doorstep. Eventually the family left for home, but right after
    arriving they departed again, this time for their neighbor Danny Chaney’s house.
    At Chaney’s, Harper helped himself to “maybe one or two more beer[s]” from the
    cooler. By this time Harper was, of his own admission, an intoxicated man.
    Then the quarrel started. At Chaney’s house, Harper asked Crimmins
    whether he could borrow her van to go get more alcohol. Crimmins refused,
    flustering Harper in front of his friend. Later on at home, the pair continued their
    argument, which soon blew “out of control.” While two year-old Johnny Ray slept
    on the couch and four-year old Joey played video games in the living room, Harper
    and Crimmins tussled in the bedroom. Crimmins tried to call the police, but before
    she could connect, Harper seized the phone and threw it against the wall. The fight
    then migrated to the dimly lit living room, where Crimmins came on Harper “like a
    bulldog and attacked.” After tripping over their son Joey, the couple wrangled on
    the floor, and Harper endeavored to pin down Crimmins’ churning arms.
    Around that time, Harper’s nephew Brandon Singleton entered to calm the
    conflict. His efforts, however, proved fruitless. As Singleton intervened, Harper
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    exclaimed, “Why don’t y’all just leave me alone[?]” and marched to the bedroom
    to grab his .22 rifle. When Harper returned, Crimmins was heading out the door
    with one of the children. Harper then loosed a volley of bullets into the ceiling as
    Crimmins loaded her sons into the van, hoping Crimmins would return “if she
    thought [Harper] was serious about killing [himself].” But the plan did not work—
    Crimmins sped with the children into the night.
    After Crimmins left, Harper spirited away to the woods behind his house.
    He ran—high stepping around the prickly pads in his path—until he paused to
    deposit his rifle in the fork of a tree. Harper squatted next to the tree and cried. “I
    knew . . . right then that Mary was leaving and it—and I knew that things had gone
    too—way too far and I just—I broke down.”
    B. The Police Arrive
    Earlier that evening, as Crimmins and Harper’s altercation broiled, Brandon
    Singleton called the cops. The emergency dispatcher asked Singleton what was the
    matter. “Yea, I’m at 358 Loblolly Lane in Hickory Hills,” Singleton said. “I got
    fuckin’ a man pointin’ guns at everybody, beatin’ on his wife, I need the fuckin’
    police out here now.” Then the call dropped. When they reconnected, the
    dispatcher asked Singleton to describe the house so police would recognize it as
    they approached. “It’s a trailer. It’s a big ass blue Dodge in front of my trailer,”
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    Singleton explained. “The woman is leaving now with the kids and he is chasing
    them with a fuckin’, a fuckin’ [knife??].”
    Coffee County police officer Christopher Perkins responded to the call at
    10:25 PM. While heading to Loblolly Lane, Perkins spotted Crimmins flagging
    him down at an intersection. Perkins stopped and spoke to Crimmins, who
    reported that Harper had been drinking all day and taken methadone. Perkins also
    noticed that Crimmins was injured. After urging Crimmins to stay put, Perkins
    drove on to meet Singleton and Sergeant Rodney Courson, who had arrived first, in
    front of Harper’s house. Singleton told the officers that he had heard screams and
    seen Harper atop Crimmins, holding her arms down. Singleton also relayed that
    Harper pointed a gun at him, fired into the ceiling, and threatened suicide before
    dashing into the forest.
    When they heard Singleton’s story, the officers elected to search for Harper
    in the woods. They called for canine backup, and defendants Jeremiah Davis—a
    Coffee County deputy—and Matthew Gourley—a canine officer from the Georgia
    Department of Corrections—arrived on the scene.2 Courson and Perkins briefed
    the new arrivals on events to that point, and the foursome donned bulletproof vests,
    a procedure reserved for exceptional situations. Then the officers walked to the
    2
    Gourley also spoke with Crimmins on his drive to Loblolly Lane. Crimmins told him
    “she was afraid to go back to her house because of what had happened.”
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    back of the house with Gourley’s bloodhound. The dog picked up a scent, and the
    chase was on.
    C. Harper Falls from the Tree
    Harper peered through the woods to see police flashlights sparkling in his
    backyard. At that moment Harper scaled the tree where he had stashed his rifle. “I
    was hoping if they shined the light out there [in the woods] and didn’t see me, that
    they would just take a statement and leave,” Harper explained at his deposition.
    But onward the officers marched. When Harper saw a dog leading the search
    party, he “eased up on some little bitty limbs that was on there and I kind of—I
    kind of just squeezed myself to that tree.”
    Meanwhile Gourley and Davis tailed the bloodhound, moving ahead of
    Courson and Perkins as they went. They passed some trash and an old shed, then
    the dog lifted its head and “winded.” That meant the target was nearby. Harper,
    seeing the bloodhound sniffing near the base of his tree, “knew [that he] was
    caught.” “Hey, I’m up here,” he called to the officers, and Perkins, who was
    standing just below Harper’s perch, said “He’s up in the tree.” Gourley and Davis
    doubled back and trained their flashlights on the suspect. They had unwittingly
    passed by Harper as they tracked.
    “Let me see your hands. Let me see your hands. Come down out the tree,”
    the officers hollered. Harper looked at the officers and said, “My hands is out,”
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    but they kept yelling for Harper to show his hands and descend. Then Harper
    pushed himself back off the branch and cussed, “What the fuck you want me to
    do? I can’t do both. My hands is out.” At that moment, Harper remembered the
    rifle lodged upright in the tree fork near his feet. Fearing the police would kill him
    when they saw his gun, Harper alerted Perkins—who was still directly below
    him—“There’s a gun down there at the tree.” Perkins shined his flashlight on the
    rifle and back on Harper, then shouted, “He’s got the fucking gun up in the tree
    with him.” 3
    That instant, Gourley shot his electronic control device—or Taser—at
    Harper’s bare abdomen. The Taser probes struck just below Harper’s bottom left
    rib but failed to transmit a clean electric shock. As Harper fell back against the
    tree and slapped the malfunctioning wires from Gourley’s Taser, Davis reholstered
    his handgun and drew his own Taser. Davis fired his device at Harper, and this
    time the probes made a sound connection. Harper’s body, seized with electricity,
    fell from the eight foot-high branch and torpedoed headlong to the earth. The fall
    left Harper a paraplegic.
    3
    The location of Harper’s rifle is hotly disputed. In his deposition, Harper indicated that
    the gun remained stashed in the fork below him, somewhere near his feet, when he was tasered.
    This account seems to jibe with a statement Davis made for an internal investigation completed a
    day after Harper’s fall. Officer Courson, on the other hand, said Davis reported after the incident
    that Gourley saw Harper reaching for the rifle. Finally, both Davis and Gourley testified in their
    depositions that they saw Harper holding the rifle just before he was tasered. Clearly not all of
    these accounts are true. For the purposes of summary judgment, however, we credit Harper’s
    version of the facts, i.e., that the rifle remained below him before the fall. See 
    Morton, 707 F.3d at 1280
    .
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    The entire exchange—from when Harper saw the officers tromping through
    the woods to the moment Harper hit the ground—lasted little more than a minute.
    II. DISCUSSION
    This appeal presents one issue for decision: Are officers Jeremiah Davis and
    Matthew Gourley liable under the Fourth Amendment of the U.S. Constitution for
    the injuries Harper sustained on the night of May 27, 2008? 4 After a careful
    review of the record, the law, and the briefs, we answer this question in the
    negative. See Morton v. Kirkwood, 
    707 F.3d 1276
    , 1280 (11th Cir. 2013) (“We
    review a district court’s denial of summary judgment on qualified immunity
    grounds de novo.”).
    A. Fourth Amendment Excessive Force Law
    The Fourth Amendment guarantees “the right of the people to be secure in
    their persons . . . against unreasonable searches and seizures.” U.S. Const. amend.
    IV. This provision requires, as a corollary, that officers of the state refrain from
    using unreasonable force to make arrests and investigatory stops. See Graham v.
    Connor, 
    490 U.S. 386
    , 396 (1989). Unfortunately there is no clear signpost
    demarcating “the hazy border between excessive and acceptable force.” Smith v.
    Mattox, 
    127 F.3d 1416
    , 1419 (11th Cir. 1997). Instead, courts analyze excessive
    force claims in a deeply factual way, considering “the severity of the crime at
    4
    Defendants tasered Harper after midnight. Thus it was May 27, not May 26, when
    Harper fell from the tree.
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    issue, whether the suspect pose[d] an immediate threat to the safety of the officers
    or others, and whether [the suspect was] actively resisting arrest or attempting to
    evade arrest by flight.” 
    Graham, 490 U.S. at 396
    . Courts appraise these factors
    from the perspective of “a reasonable officer on the scene,” and not through “the
    20/20 vision of hindsight.” 
    Id. Yet even
    if an officer violates the Fourth Amendment as explained above,
    that does not mean he falls subject ineluctably to suit. The doctrine of qualified
    immunity shields “government officials performing discretionary functions . . .
    from liability for civil damages insofar as their conduct does not violate clearly
    established statutory or constitutional rights of which a reasonable person would
    have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982); see also Wood v.
    Moss, 
    134 S. Ct. 2056
    , 2066−67 (2014); Tolan v. Cotton, 
    134 S. Ct. 1861
    , 1866
    (2014); Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009); Bates v. Harvey, 
    518 F.3d 1233
    , 1242 (11th Cir. 2008). This formula metes liability to police who act
    irresponsibly while shielding those who make reasonable mistakes in the line of
    duty. 
    See 555 U.S. at 231
    .
    To claim qualified immunity, defendants must show they were performing
    discretionary duties when the alleged abuse occurred. 
    Bates, 518 F.3d at 1242
    .
    Then, if defendants carry their burden, plaintiff must prove both that the officers
    breached a constitutional right and that the right was clearly established when the
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    misconduct occurred. 
    Pearson, 555 U.S. at 232
    . The trial court may choose which
    element of plaintiff’s burden to analyze first. 
    Id. at 236.
    And, should plaintiff fail
    to show that the law clearly proscribed defendants’ conduct, the court may dismiss
    the claim without deciding the constitutionality of the disputed deeds. See 
    id. at 243−45;
    Reichle v. Howards, 
    132 S. Ct. 2088
    , 2093 (2012) (“[C]ourts may grant
    qualified immunity on the ground that a purported right was not ‘clearly
    established’ by prior case law, without resolving the often more difficult question
    whether the purported right exists at all.”); Camreta v. Greene, 
    131 S. Ct. 2020
    ,
    2030−31 (2011) (“If prior case law has not clearly settled the right, and so given
    officials fair notice of it, the court can simply dismiss the claim for money
    damages.”).
    B. Gourley and Davis Merit Qualified Immunity
    With these principles in mind, we dismiss Harper’s Fourth Amendment
    claim against Davis and Gourley. The defendants briefed qualified immunity at
    summary judgment, and nobody disputes that defendants were discharging
    discretionary duties when they arrested Harper. See Harper, 
    2013 WL 3048322
    , at
    *7 (implicitly assuming that defendants met burden). Consequently, Harper had to
    show that the law in force on May 27, 2008 clearly proscribed defendants’
    conduct. Neither he nor the district court did so.
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    To prove that the law clearly barred a defendant’s behavior, plaintiffs have
    two paths they can follow. First, they may cite case law that would have given
    defendant “fair warning” that his conduct was unlawful. Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002). The facts of these cases need not be “materially similar” to the
    facts at hand, but they must be similar enough so “a reasonable official would
    understand that what he is doing violates [a constitutional] right.” 
    Id. at 739;
    see
    also Coffin v. Brandau, 
    642 F.3d 999
    , 1015 (11th Cir. 2011). This Court considers
    only “cases from the United States Supreme Court, the Eleventh Circuit, and the
    highest court of the state under which the claim arose” in this analysis. 
    Coffin, 642 F.3d at 1013
    .
    Alternatively, plaintiffs may argue that a general constitutional rule applied
    with “obvious clarity” to ban defendant’s conduct. 
    Hope, 536 U.S. at 741
    . This
    approach recognizes that, at times, no binding precedent exists to prohibit a
    defendant’s specific acts. In such situations, officers have fair warning if their
    conduct “lies so obviously at the very core of what the [Constitution] prohibits that
    the unlawfulness of the conduct was readily apparent to [the officer],
    notwithstanding the lack of caselaw.” 
    Smith, 127 F.3d at 1419
    .
    i.    The Alleged Violation Was Not Clearly Established in Case Law
    Harper took neither avenue to show that Davis and Gourley’s conduct was
    clearly unlawful. Harper, for one, cites no cases published before May 2008 that
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    plainly barred defendants from using significant force to arrest Harper and ensure
    he was not armed. And although the district court supplied cases of its own to fill
    the gap, none of these precedents measure up. Harper, 
    2013 WL 3048322
    , at *7.
    Lee v. Ferraro, 
    284 F.3d 1188
    (11th Cir. 2002), for example, considered a plaintiff
    who did no wrong but to honk her horn in a traffic jam. The defendant officer
    pulled plaintiff over and requested her driver’s license, but before plaintiff could
    retrieve her license, the officer yanked her from the car by the wrist. 
    Id. at 1191.
    Then, after the officer cuffed plaintiff, he “led [her] to the trunk of [her] car and
    slammed [her] head down onto the trunk.” 
    Id. We denied
    the defendant qualified
    immunity because “a reasonable officer could not possibly have believed” he had
    cause to slam the suspect’s head “after she was arrested, handcuffed, and
    completely secured, and after any danger to the arresting officer . . . had passed.”
    
    Id. at 1199.
    Here, by contrast, a reasonable officer might question whether “any danger
    had passed” when defendants tasered Harper. Unlike the Lee plaintiff—who did
    nothing wrong but to tap her horn—Harper had reportedly beaten his wife, pointed
    a gun at his nephew, fired rounds into the ceiling, threatened suicide, and fled
    armed into the woods before the police arrived. See 
    id. at 1190−91.
    Furthermore,
    Harper stood in a tree just above Perkins (a position of tactical advantage) when
    defendants spotted him. Finally, as defendants hollered at Harper to show his
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    hands and descend, Perkins shouted, “He’s got the fuckin’ gun in the tree with
    him.” In this chaotic moment—with the suspect cornered but loose and an
    unsecured rifle somewhere nearby—a reasonable officer might use a “degree of
    physical coercion” bordering on deadly force to make an arrest and ensure the
    safety of his fellows. See 
    Graham, 490 U.S. at 396
    . At least Harper was not “fully
    secured” such that force was “unnecessary to any legitimate law enforcement
    purpose.” See 
    Lee, 284 F.3d at 1199
    .
    The trial court’s other cases, Slicker v. Jackson, 
    215 F.3d 1225
    (11th Cir.
    2000), and Priester v. City of Riviera Beach, 
    208 F.3d 919
    (11th Cir. 2000), also
    failed to warn defendants that tasering Harper was unconstitutional. In Slicker, the
    plaintiff was arrested for disorderly conduct at a police 
    station. 215 F.3d at 1227
    .
    After cuffing the plaintiff, defendants kicked the plaintiff and knocked his head
    into the pavement. 
    Id. Unlike Harper
    , the Slicker plaintiff had not committed a
    violent crime, had no weapon, and was fully secured when the cops beat him. In a
    similar vein, the Priester plaintiff, suspected of stealing $20 of snacks and
    crackers, obeyed defendants’ demands and prostrated himself on the ground before
    police loosed a German Shepherd on 
    him. 208 F.3d at 923
    n.1, 927. Again: no
    serious crime, no weapon, no apparent resistance to arrest. Lee, Slicker, and
    Priester do not clearly show that tasering Harper was unconstitutional.
    ii.    The Alleged Violation Was Not “Obviously Clear”
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    Harper also fails to show that the law barred defendants’ conduct with
    “obvious clarity.” See 
    Hope, 536 U.S. at 741
    . On summary judgment, the trial
    court quoted our decision at the motion-to-dismiss stage to show that tasering
    Harper was unreasonable. 
    2013 WL 3048322
    , at *7. In that opinion we found—
    based on scarce evidence in the complaint—that Harper “(1) was at least four feet
    up in a tree with his hands raised, (2) posed no threat to [the officers’] safety or the
    safety of others, (3) had no chance, and did not attempt, to flee, and (4) merely put
    his hands in the air in compliance with the instructions of at least one officer.” 459
    F. App’x at 827. We concluded that tasering a suspect so situated obviously
    violated the Fourth Amendment. 
    Id. (citing Oliver
    v. Fiorino, 
    586 F.3d 898
    (11th
    Cir. 2009)).
    Harper would have us make the same finding now, but we refuse to do so.
    First, in our previous opinion, we had no occasion to consider the initial Graham
    factor, the crimes leading to Harper’s arrest: “As for the first factor of the
    excessive force test—the severity of the plaintiff’s crime—we have little basis to
    assess it, because he did not specify his crime in the complaint.” 
    Id. at 826;
    Graham, 490 U.S. at 396
    . After discovery we know, however, that defendants
    were told Harper overdrank, beat his wife, fired a rifle in his home, threatened
    suicide, then fled with his weapon into the woods. Harper’s crimes were indeed so
    worrisome that Gourley, Davis, and the other officers donned bulletproof vests
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    before tracking. We doubt a reasonable officer would find it “readily apparent”
    that defendants’ force was excessive under the circumstances. 
    Smith, 127 F.3d at 1419
    .
    Discovery evidence also leads us to reconsider another Graham factor:
    whether a reasonable officer would think Harper made no attempt to escape arrest.
    
    See 490 U.S. at 396
    . On this score, the trial court highlighted that Harper tried to
    surrender but could not raise his hands and descend the tree at the same time. 
    2013 WL 3048322
    , at *6. “[V]iewing the facts in the light most favorable to Plaintiff,”
    the trial court reasoned, “Plaintiff was as compliant as possible.” 
    Id. Yet this
    analysis misses an important point. In qualified immunity cases, we ask not
    whether the suspect intended to surrender, but rather whether a reasonable officer
    on the scene would think the suspect was surrendering. See Troupe v. Sarasota
    Cnty., 
    419 F.3d 1160
    , 1168 (11th Cir. 2005) (“Although the facts must be taken in
    the light most favorable to the plaintiffs [at summary judgment], the determination
    of reasonableness must be made from the perspective of the officer.”). One must
    remember that Gourley and Davis found Harper in a tree. This initial position
    betokened flight, not gentle surrender. See Crenshaw v. Lister, 
    556 F.3d 1283
    ,
    1291−93 (11th Cir. 2009) (approving use of canine against suspect who tried to
    surrender but remained concealed in underbrush). And while we concede that the
    officers’ twofold commands made compliance difficult, we disagree that
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    defendants behaved unreasonably under the circumstances. To arrest their suspect,
    the officers had to coax Harper from the tree; to ensure the suspect did not shoot
    them, the officers needed Harper to show his hands. We cannot hold in hindsight
    that defendants’ commands were improper or that it was readily apparent that
    tasering Harper was unwarranted. See Garczynski v. Bradshaw, 
    573 F.3d 1158
    ,
    1167 (11th Cir. 2009) (refusing to evaluate what officers “could or should have
    done in hindsight” to deescalate suicide situation).
    Finally, we disagree that a reasonable officer would think Harper posed no
    “immediate threat to the safety of the officers or others.” See 
    Graham, 490 U.S. at 396
    . In finding that Harper posed no danger to defendants, the trial court noted
    that Harper’s “hands were raised and empty” when the officers deployed their
    Tasers, and Harper “had abandoned the gun far enough away that he would have
    had to move away from his current perch to access it.” 
    2013 WL 3048322
    , at *6.
    But once again, this analysis views the evidence from Harper’s perspective, not an
    officer’s. Even if Harper were entirely unable to harm defendants—whether
    because his rifle was out of reach, because he was trying to show his hands, or
    because he planned to surrender—a reasonable officer in defendants’ shoes would
    have thought Harper was dangerous. Before the search, Gourley and Davis learned
    that Harper was drunk and had a gun. Then, in the tense seconds after the officers
    found their suspect in the tree, and as Harper fumbled to show his hands and come
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    down, Perkins exclaimed, “He’s got the fuckin’ gun in the tree with him.” Gourley
    tasered Harper immediately, and Davis followed suit just seconds after. Even
    drawing reasonable inferences in Harper’s favor, we cannot say it was obviously
    clear that defendants’ acted excessively to neutralize the perceived threat. To echo
    our holding in Carr v. Tatangelo, a “reasonable but mistaken belief that probable
    cause exists for using [significant] force is not actionable under § 1983.” 
    338 F.3d 1259
    , 1269 (11th Cir. 2003); see also Penley v. Eslinger, 
    605 F.3d 843
    , 854 (11th
    Cir. 2010) (finding reasonable the shooting of a teenager armed with a realistic-
    looking plastic gun). 5
    III. CONCLUSION
    In sum, Harper failed to show that defendants infringed his clearly
    established constitutional rights. Thus we grant Gourley and Davis qualified
    immunity without directly assessing the constitutionality of their conduct. By so
    holding, we do not wish to belittle the personal tragedy Harper suffered on that late
    spring night. No doubt losing one’s mobility and one’s family in a single stroke
    inflicts wounds beyond repair. Even so, we cannot hold defendants liable for
    5
    We have considered all of Harper’s other arguments and find they lack merit. Harper
    claims, for example, that defendants could not have heard Perkins alert them to the gun in the
    tree because both defendants said they saw Harper holding the gun. Yet Harper testified that
    Gourley tasered him immediately after Perkins shouted the gun’s location. From this testimony,
    which we must credit at summary judgment, we can only infer that defendants tasered Harper in
    response to Perkins’s cry. The evidence does not support alternative inferences, e.g., that
    defendants would have tasered Harper even if they knew plaintiff could not reach the gun. See
    Mize v. Jefferson City Bd. of Educ., 
    93 F.3d 739
    , 743 (11th Cir. 1996) (holding court need not
    withhold summary judgment if nonmovant’s inferences “implausible”).
    18
    Case: 13-13190    Date Filed: 07/11/2014   Page: 19 of 19
    conduct that the law did not clearly prohibit. For the foregoing reasons, the
    judgment of the district court is reversed, and the case is remanded with
    instructions that judgment be entered for Gourley and Davis.
    REVERSED and REMANDED.
    19