Ronald Hunter, Jr. v. Leeds, City of ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11939
________________________
D.C. Docket No. 1:15-cv-02266-KOB
RONALD HUNTER, JR.,
Plaintiff – Appellee,
versus
LEEDS, CITY OF, as a person under 42 U.S.C. § 1983,
BYRON JACKSON, Chief of Police, individually and in his official capacity,
ROBERT KIRK,
RON REAVES,
JOHN SHIELDS,
BRIAN CHALIAN,
Officers, each individually and in his official capacity,
Defendants – Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 1, 2019)
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Before TJOFLAT, NEWSOM, and GILMAN,* Circuit Judges.
TJOFLAT, Circuit Judge:
In this case, an armed individual, suspected of being involved in a shooting,
was shot by a police officer at the conclusion of a four-car police chase. The
suspect brought this action under 42 U.S.C. § 1983 against all the officers involved
in the pursuit, claiming that the shooting constituted excessive force in violation of
the Fourth Amendment; 1 he also raised various other state-law claims related to the
shooting. The officers, in response, alleged that the force was justified because the
suspect pointed his gun at the officer who shot him after being ordered to drop it,
and alternatively that they are immune from suit under qualified immunity and
Alabama’s state-law discretionary-function immunity.
The officers moved for summary judgment on all counts on the grounds of
qualified and state-law immunity. The District Court denied their motion in large
part. They now appeal. 2 We affirm the District Court’s decision with respect to
the one officer who shot the suspect but reverse as to the remaining officers.
*
Honorable Ronald Lee Gilman, United States Court of Appeals for the Sixth Circuit,
sitting by designation.
1
The Fourth Amendment provides in relevant part: “The right of the people to be secure
in their persons . . . against unreasonable searches and seizures, shall not be violated . . . .” U.S.
Const. amend. IV. The Fourth Amendment’s prohibition of unreasonable searches and seizures
applies to the States and their political subdivisions under the Due Process Clause of the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961).
2
We have jurisdiction under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530,
105 S. Ct. 2806, 2817 (1985) (“[A] district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28
2
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I.
The events leading up to Ronald Hunter, Jr.’s Fourth Amendment claim
stem from a domestic quarrel that turned violent. That episode occurred on
December 16, 2013, in an apartment complex in the City of Leeds, Alabama,
where Anthony Roberson and Tammy Miller (the latter being Roberson’s wife and
Hunter’s daughter) lived. Hunter came to the residence in somewhat of a rage,
armed with a gun. Hunter and Roberson argued, and the dispute escalated when
Hunter drew his gun. Roberson, also armed, fired several shots at Hunter.
The Leeds Police Department received two 911 calls. The first caller
screamed incessantly, and the only thing the 911 operator could make out was
“Frisco Avenue.” Officer Robert Kirk and Sergeant Ron Reaves were dispatched
to the Frisco Avenue neighborhood but found nothing. The second call came
about thirty minutes later. The caller said that a man was holding a child hostage
at gunpoint at the Marlee Villa Apartments. Kirk and Reaves were again
dispatched to the scene, along with Officer Brian Chalian. While en route, the
dispatcher informed the officers that shots had been fired at the apartment, and that
one of the men involved, Hunter, was sitting in his car, a yellow Monte Carlo, on
Frisco Avenue in front of the apartment complex.
U.S.C. § 1291 notwithstanding the absence of a final judgment.”); Sheth v. Webster, 145 F.3d
1231, 1237–38 (11th Cir. 1998) (per curiam) (holding that a district court’s denial of Alabama
state-law immunity under § 6–5–338(a) is immediately appealable).
3
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When Kirk, Reaves, and Chalian arrived at the Marlee Villa Apartments,
each in a separate patrol car, they found Hunter sitting in the Monte Carlo with the
windows up. According to the officers, Kirk drew his gun and ordered Hunter to
show his hands. Hunter did not comply. Hunter appeared to be yelling, but Kirk
and Reaves couldn’t make out what he was saying. While Hunter admits that he
saw the police arrive, he denies seeing Kirk draw his gun or hearing any order to
show his hands. He thought the officers had come to arrest Roberson for shooting
at him, so he drove away, headed toward his home at 8101 Jackson Avenue.
Kirk, Reaves, and Chalian pursued him to his residence. The Chief of
Police, Byron Jackson, was in his office when the second 911 call came. When he
learned that Hunter had left the scene and that the three officers were pursuing him,
he joined the chase.
There is some disagreement as to the nature of the chase. The officers
maintain that Hunter sped, drove erratically and in the opposing lane, and ran a red
light and a stop sign. Kirk claims that Hunter pointed a gun through his back
window at Kirk’s patrol car; he informed the other officers over the radio that he
saw a gun in Hunter’s hand. Hunter denies seeing or hearing the police following
him, denies that he was driving recklessly, and denies ever pointing his gun or
making it visible to anyone.
4
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On arriving at his residence, Hunter parked in the carport behind the house.
Kirk drove into the driveway and stopped short of the carport. He got out of his
patrol car and ordered Hunter, who was sitting in the driver’s seat, to show his
hands. When Kirk observed Hunter looking down toward his lap, he repositioned
himself behind a large tree near the carport, 20 to 25 feet away from Hunter’s car.
Again, he ordered Hunter to show his hands. Hunter failed to do so and, instead,
shifted from the driver’s seat of his car to the passenger’s seat and opened the door.
As he opened the door, Kirk claims Hunter turned and pointed his gun at Kirk, so
Kirk fired.
By this time, Jackson had pulled into the driveway, parked his car, and taken
a position alongside the house, using it for cover. He could see Kirk standing a
few yards ahead behind the tree with his weapon drawn. A moment later, as
Jackson approached the edge of the house, he saw Kirk shoot in Hunter’s direction.
Reaves heard the first round of shots as he was getting out of his patrol car
on Jackson Avenue—he had driven past Hunter’s residence to cut off a potential
escape route. Chalian also heard the shots while parking his patrol car on Moore
Street, which ran alongside Hunter’s residence.
Kirk fired “approximately three rounds.” Hunter recoiled into his car and
then reached back out for the door. According to Kirk, Hunter still had the gun in
his hand, and he pointed it at Kirk again. Hunter denies that he pointed the gun at
5
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Kirk; instead, he says he dropped the gun through the open door. Kirk, acting on
his impression that Hunter had the gun in his hand, fired several more shots. A
total of ten bullet casings, all matching Kirk’s service weapon, were ultimately
recovered from the scene.
At this point, Jackson had not changed his position; he was still behind the
residence, using it for cover. Reaves, meanwhile, had moved toward Kirk. He
heard Kirk tell Hunter to drop the gun, and then saw Kirk fire the second round of
shots, but still could not see Hunter from where he was. Chalian was still on the
other side of the house, between the house and Moore Street, when the second
round of shots was fired.
After Kirk fired the second round of shots, Hunter fell back into his car.
Jackson then approached the car on the passenger side, directing Kirk to cover him.
He saw Hunter slumped in the passenger seat and a gun on the front transmission
tunnel. He grabbed Hunter’s right hand, pulled him out of the car, and told Reaves
to call the paramedics. An ambulance arrived, and Hunter was taken to the
hospital where he received medical care. Officer John Shields, who had been on
duty elsewhere, came to the scene as Hunter was being placed in the ambulance.
Hunter disputes most of the officers’ descriptions of the shooting. He claims
that he tried to open his driver-side door, but it was jammed, so he moved to the
passenger side of the car. Once he opened the passenger door, he was shot in the
6
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stomach. He heard someone order him to throw out his gun, so he dropped it
through the opening of the door. When he opened the door wider to exit the
vehicle, he “heard shots from several directions” and was “shot multiple times.”
He denies that he ever pointed his gun at anyone while he was en route to his
residence or after he arrived there.
On January 14, 2014, a complaint was filed in the Jefferson County Circuit
Court alleging that “Ronald Hunter did, with intent to commit the crime of
murder . . . attempt to intentionally cause the death of another person, Robert Kirk,
by pointing a pistol at Peace Officer Robert Kirk.” A warrant issued for Hunter’s
arrest, and he was taken into custody. On June 20, 2014, Hunter was indicted for
attempted murder for “pointing a pistol at Peace Officer Robert Kirk.” In the
interim, the Court had Hunter examined by a court-appointed psychiatrist to
determine his competency to proceed and his mental state at the time of the
offense. He was found to be “overtly psychotic” and not competent to proceed.
The Court therefore committed him to the State Department of Mental Health for
treatment. Hunter was admitted to the Taylor Hardin Medical Facility on July 17,
2014, and on September 30, 2014, the Court, acting on the Facility’s report, found
him competent to stand trial for attempted murder.
7
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In December 2015, while the prosecution was pending, Hunter brought this
action against the officers involved in his apprehension, 3 and the City of Leeds,
asserting the excessive-force claim now before us, as well as other federal and
state-law claims.4 On January 25, 2016, pursuant to a plea agreement, he pled
guilty in the Circuit Court to the lesser-included offense of menacing.5 Both the
proposed plea agreement and the plea signed by the court indicate that Hunter pled
guilty to “Att Murder reduced to Menacing.”
3
Hunter also sued Inspector Alan Holman, who was one of the officers dispatched
pursuant to the second 911 call. The District Court dismissed Holman from the case because
Hunter was unable to serve him with process.
4
Hunter’s complaint in this case contains nine counts. It fails to comply with the
pleading requirements of Federal Rule of Civil Procedure 8(a) and Ashcroft v. Iqbal, 556 U.S.
662, 129 S. Ct. 1937 (2009), in that it is replete with conclusory allegations—both of fact and
law. Moreover, it is a shotgun complaint in that each count subsequent to the first count
incorporates by reference all previous allegations and counts. Putting aside these incorporations,
we describe what each of the nine counts standing alone appears to claim. Three counts (I, III,
and VI) seek relief against the defendant officers under 42 U.S.C. § 1983 for violations of the
federal constitution. Count I alleges that the officers used excessive force in apprehending
Hunter; Count III alleges that the officers not involved in the shooting were liable for the use of
such force by failing to intervene; and Count VI alleges that, following Hunter’s indictment for
attempted murder, the officers denied him procedural due process of law. Six of the counts seek
relief under state law. Counts II, “Assault and Battery,” and IX, “Tort of Outrage,” are brought
against the officers. Counts IV, “Negligent Supervision,” V, “Inadequate Training,” VII, “Civil
Conspiracy,” and VIII, “Deliberate Indifference,” are brought against the City of Leeds and
Police Chief Jackson. The only claims presented in this appeal are those related to the
shooting—Counts I, II, III, and IX.
5
“A person commits the crime of menacing if, by physical action, he intentionally places
or attempts to place another person in fear of imminent serious physical injury.” Ala. Code
§ 13A–6–23(a).
8
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The officers jointly moved the District Court for summary judgment on two
grounds.6 First, Hunter’s plea of guilty to the offense of menacing estopped him
from denying that he pointed his gun at Kirk and therefore Kirk’s response was
reasonable under the Fourth Amendment. Second, and alternatively, Hunter’s
excessive-force claim could not be maintained because the officers were entitled to
qualified and state-law immunity. The District Court denied the motion in large
part, 7 holding with respect to Hunter’s Fourth Amendment claim that he was not
estopped from denying that he pointed his gun at Kirk, and thus that the officers
were not entitled to immunity. The officers brought this interlocutory appeal
contesting the District Court’s denial of qualified immunity and state-law
immunity from suit. 8
II.
Before we can decide whether the officers are entitled to qualified immunity
based on their conduct, we must first determine what exactly that conduct was. 9
6
The Officers moved for summary judgment without answering Hunter’s complaint.
The District Court entertained and ruled on their motion notwithstanding the absence of an
answer asserting, among other things, qualified immunity.
7
The District Court granted the motion as to Shields’s liability for the excessive force,
failure to intervene, and assault and battery claims, since it was undisputed that Shields was not
present when Hunter was shot. Hunter did not cross-appeal this ruling.
8
We review the denial of summary judgment based on qualified immunity de novo,
viewing the facts in the light most favorable to the nonmovant. Salvato v. Miley, 790 F.3d 1286,
1292 (11th Cir. 2015).
9
In the course of deciding an interlocutory appeal from the denial of qualified immunity,
we have authority to decide otherwise non-appealable matters if they are “inextricably
intertwined with [the] appealable decision [on qualified immunity,] or if review of the former
decision is necessary to ensure meaningful review of the latter.” Smith v. LePage, 834 F.3d
9
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Although we must view the facts in the light most favorable to Hunter, as the non-
moving party, the officers’ primary argument on appeal is that the District Court
erred in crediting Hunter’s assertion that he never pointed his gun at Kirk or any of
the officers. They argue that his guilty plea to menacing prevents him from
relitigating whether he pointed his gun, on the ground of either judicial or
collateral estoppel, or the Supreme Court’s decision in Heck v. Humphrey, 512
U.S. 477, 114 S. Ct. 2364 (1994). We conclude that collateral estoppel bars
Hunter from asserting, contrary to his guilty plea, that he never pointed his gun at
Kirk, but does not bar him from contesting Kirk’s statements regarding the number
of times that Hunter allegedly pointed his gun.
To determine the preclusive effect of an Alabama criminal judgment, we
must apply Alabama law. Brown v. City of Hialeah, 30 F.3d 1433, 1437 (11th Cir.
1994). In Alabama, collateral estoppel bars parties from relitigating a previously
decided issue where (1) the issue and the parties are the same in both cases, (2) the
issue was “actually litigated” in the prior case, and (3) the resolution of that issue
was “necessary to the prior judgment.” Leon C. Baker, P.C. v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 821 So. 2d 158, 162–63 (Ala. 2001). The “same-
parties” prong may be satisfied if the party seeking the benefit of collateral
1285, 1292 (11th Cir. 2016) (quoting Jackson v. Humphrey, 776 F.3d 1232, 1239 (11th Cir.
2015)).
10
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estoppel is in privity with the party in the first suit, and the party to be estopped is
bound by the previous judgment—i.e., was a party to the previous suit. Wood v.
Kesler, 323 F.3d 872, 880 n.10 (11th Cir. 2003) (citing Leon C. Baker, 821 So. 2d
at 165). Alabama’s expansive definition of privity “includes not only a successive
interest to the same property right, but also ‘an identity of interest in the subject
matter of [the] litigation.’” Id. (quoting Leon C. Baker, 821 So. 2d at 165).
Here, the defendant officers were not parties to the criminal proceeding
against Hunter in state court, which culminated in Hunter’s guilty plea. However,
we find that the officers shared an “identity of interest” with the State, and thus are
in privity with the State for purposes of this suit. Our decision in Wood v. Kesler is
instructive.
In Wood, we found an “identity of interest” between the State, which
prosecuted a criminal defendant, and the officer who arrested that defendant, in a
§ 1983 suit against the officer stemming from the arrest. 323 F.3d at 880 n.10.
There, the defendant was cited for speeding 17 miles-per-hour over the speed limit
and arrested for reckless driving. Id. at 875–76. A jury found him guilty of
speeding, but not guilty of reckless driving. Id. at 876. He then sued the arresting
officer under § 1983, claiming false arrest and malicious prosecution. Id. at 876–
77. We held that the defendant’s conviction for speeding collaterally estopped
him, under Alabama law, from denying that he had been driving 17 miles-per-hour
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over the speed limit in his § 1983 suit. Id. at 879. Although the arresting officer
“was not a party in the prior case, [he] acted for the State in charging [the
defendant] with speeding in the prior case and shares an identity of interest with
the State in the subject matter of the litigation.” Id. at 880 n.10. Thus, the
arresting officer was in privity with the State, and the same-parties requirement
was satisfied. Id.
Likewise here, the officers “acted for the State” in pursuing and
apprehending Hunter, and the “subject matter of the litigation” is identical to the
subject matter of Hunter’s criminal prosecution. Hunter’s guilty plea and
conviction for menacing were based on his conduct during the officers’ pursuit and
apprehension of Hunter, and Hunter’s present § 1983 claims all center on the
officers’ conduct during that same pursuit and apprehension. Under these
circumstances, where the events that form the basis of each case are identical, the
officers and the State share an identity of interest in the allocation of rights and
liabilities arising from that single episode. The officers were acting for the State
during the pursuit and apprehension that resulted in Hunter’s prosecution, and they
share an interest with the State in ensuring that Hunter is held responsible for his
actions during that encounter. Thus, the same-parties requirement is satisfied.10
10
We do not suggest that, as a matter of Alabama estoppel law, an arresting officer will
always be in privity with the State such that he may use collateral estoppel to prevent an arrestee
from litigating, in a subsequent civil suit, facts determined against him in a prior criminal
12
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Additionally, the issue presented here—whether Hunter pointed his gun at
Kirk—is identical to the issue presented, litigated, and decided in the Alabama
criminal proceeding. The District Court reasoned that this issue was not
necessarily decided by his guilty plea, because the record failed to indicate what
“physical action” he committed to “intentionally place[ ] or attempt[ ] to place
another person in fear of imminent serious physical injury.” See Ala. Code § 13A–
6–23(a). Without a plea colloquy or other record evidence establishing the
“physical action” taken by Hunter, the Court could not be sure that the basis for
Hunter’s menacing conviction was his pointing a gun at Kirk.
But both the warrant and the initial indictment charged Hunter solely with
“pointing a pistol at Peace Officer Kirk,” and no other action. In Alabama, a guilty
plea “is an admission of all facts sufficiently charged in the indictment,” not just an
admission to the crime in the abstract. G.E.G. v. State, 54 So. 3d 949, 954 (Ala.
2010) (quoting Scott v. State, 917 So. 2d 159, 166 (Ala. Crim. App. 2005)). Of
course, here Hunter pled guilty not to the crime charged in the indictment
(attempted murder), but to the lesser-included offense of menacing. When a
defendant enters a plea to a lesser-included offense, the indictment is implicitly
amended to charge that lesser-included offense. Ex parte Cole, 842 So. 2d 605,
judgment. We hold merely that the State and the officers share an identity of interest under all
the circumstances of this case, where the prior judgment and the current § 1983 claims both
arose out of the same sequence of events involving the same individuals.
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608 (Ala. 2002); see Ala. R. Crim. P. 13.2(c) (“Specification of an offense in an
indictment or information shall constitute a charge of that offense and of all lesser
offenses necessarily included therein.”).
Nonetheless, the Alabama Rules of Criminal Procedure permit “only those
amendments that charge a lesser-included offense,” and defendants “cannot
consent to an amendment that effectively charges an offense not contemplated by
the indictment.” Ex parte Cole, 842 So. 2d at 608 (emphasis added); see Ala. R.
Crim. P. 13.5(a) (permitting amendment “except to change the offense or to charge
new offenses not contemplated by the original indictment”). Because the only
physical action charged in the indictment here was Hunter’s pointing a pistol at
Kirk, it could not have been amended under Alabama law—formally or
functionally—to add a different physical action. 11 Thus, the basis for Hunter’s
guilty plea to menacing necessarily was his pointing a pistol at Kirk, and by
pleading guilty Hunter has admitted to pointing his pistol at Kirk. Hunter is
estopped from now claiming that he did not do so. 12
11
The District Court thus erred in concluding that the specific menacing act Hunter
performed could have been something other than his pointing his pistol at Kirk. A separate act,
not charged in the indictment, could not have supported Hunter’s guilty plea to the lesser-
included offense. The validity of his conviction thus implies that the “physical action” was
Hunter’s pointing his pistol at Kirk.
12
Since we conclude that collateral estoppel bars this assertion, we do not reach the
officers’ claim that judicial estoppel also bars the assertion. Furthermore, the facts properly
asserted—i.e., not barred by collateral estoppel—do not “necessarily imply the invalidity of
[Hunter’s] conviction.” See Heck, 512 U.S. at 487, 114 S. Ct. at 2373. Because it is logically
14
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However, our inquiry cannot end here, because Kirk claims that Hunter
pointed his gun at him three separate times: once while driving, and twice at his
house. Although Hunter’s guilty plea to menacing constitutes an admission that he
pointed his gun at Kirk, it cannot fairly be construed as an admission that he
pointed his gun at Kirk all three times. The only fact necessarily decided by his
guilty plea is that Hunter pointed his gun at Kirk (at least) once. The indictment
upon which his guilty plea was based stated only that Hunter “attempt[ed] to
intentionally cause the death of another person, Robert Kirk, by pointing a pistol at
Peace Officer Robert Kirk,” which could be based on a single act of gun-pointing,
or three, or ten. Though Hunter cannot dispute that he did in fact point his gun at
Kirk, it would not be inconsistent with his guilty plea to permit him to dispute
when he pointed his gun, or whether he pointed his gun multiple times as Kirk
claims. Therefore, while collateral estoppel prevents Hunter from denying simply
that he ever pointed his gun at Kirk, it does not go so far as to prevent him from
denying Kirk’s claims that he pointed his weapon multiple times.
In sum, for purposes of our review on qualified immunity, we must assume
that Hunter pointed his weapon at Kirk. But, viewing the other evidence in the
light most favorable to Hunter, we must credit his assertions that he didn’t point his
possible that Hunter pointed his gun at Kirk, and that Kirk nonetheless used excessive force in
response, the Heck bar does not apply.
15
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weapon more than once; that is, collateral estoppel only requires us to assume that
Hunter pointed his weapon once. That leaves us with three possible factual
scenarios, based on the three separate acts of gun-pointing alleged by Kirk:
1) Hunter pointed his weapon at Kirk through the back windshield of his
vehicle while driving, but did not point his weapon at Kirk while at his
residence. 13
2) Hunter pointed his weapon at Kirk when he first arrived at his residence,
just before Kirk fired his first round of shots. Under this scenario, when
Hunter first arrived at his residence, he opened the passenger door of his
car and pointed his weapon at Kirk, and Kirk fired three shots in
response. Hunter then, after being shot and hearing an order to drop his
gun, dropped his gun through the open car door. When he opened the
door wider to get out, Kirk shot him several more times.
3) Hunter pointed his weapon at Kirk just before Kirk fired his second
round of shots. Under this set of facts, Hunter did not point his weapon
when he first arrived at his residence, but opened the passenger door and
was shot immediately by Kirk. After being shot, he opened his door
13
Although it is theoretically possible that the grand jury could have indicted Hunter for
attempted murder based on this single act of gun-pointing, it seems highly unlikely that it would
have based its indictment solely on this one action, given how the rest of the encounter between
Hunter and the officers at the residence allegedly unfolded.
16
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wider and then pointed his weapon at Kirk. Kirk then fired several
additional rounds in response.
Ultimately, a jury must resolve the fact question regarding how many times
Hunter pointed his weapon at Kirk and when. But for purposes of reviewing the
District Court’s denial of summary judgment, we must analyze the officers’
entitlement to qualified immunity under the factual scenario that is most favorable
to Hunter. That requires us to assume that the events of December 16, 2013,
unfolded as outlined in the second factual scenario above—that Hunter pointed his
weapon at Kirk upon arriving at his residence, Kirk fired three shots at Hunter in
response, Hunter then dropped his weapon out of the open passenger door, 14 and
Kirk nonetheless fired several more shots at Hunter—since that is the only version
of events in which Hunter would have been shot while he was unarmed. Under the
other scenarios, Hunter was either pointing his gun or, at the very least, was armed
at the time he was shot. Therefore, the second scenario is the version of events that
most favorably shows that Hunter is entitled to relief. 15
14
A legitimate factual dispute exists as to whether Hunter dropped his gun out of the car
or, as Kirk claims, pointed his gun at Kirk, especially since the weapon was found inside
Hunter’s car and not on the ground outside the car where Hunter claims to have dropped it.
However, at the summary judgment stage, we must resolve this factual dispute in Hunter’s favor.
15
We emphasize that these “facts, as accepted at the summary judgment stage of the
proceedings, may not be the actual facts of the case,” nor the facts that Hunter will ultimately be
able to prove at trial. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (quoting Priester v.
City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)). Nevertheless, for purposes of
summary judgment, we are not concerned with the facts that the parties might be able to prove,
17
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III.
We now turn to the question of qualified immunity. Qualified immunity
protects a government official from being sued for damages under § 1983 unless
preexisting law clearly establishes the unlawfulness of his actions, such that any
reasonable official in his position would be on notice that his conduct was
unlawful. Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013). In order to
be entitled to qualified immunity, an official must first establish that he was acting
within his discretionary authority when he engaged in the allegedly unlawful
conduct. Id. The officers in this case were clearly performing discretionary
functions when pursuing and apprehending Hunter in response to the 911 call.16
Thus, the burden shifts to Hunter to show that the officers violated his
constitutional rights, and that those rights were clearly established at the time of
the alleged misconduct. Id. at 1281. “For a right to be clearly established, ‘[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Corbitt v. Vickers, 929 F.3d
but rather with whether the facts viewed in the light most favorable to Hunter show a violation of
clearly established law. Id.
16
Although Hunter contests this point on appeal, his arguments are unavailing. The
pursuit and apprehension of suspected criminals is a core discretionary function of the police.
See Crenshaw v. Lister, 556 F.3d 1283, 1289–90 (11th Cir. 2009) (per curiam). Moreover,
Hunter did not contest this point in the District Court, and so we will not entertain his argument
on appeal. See Sterling Fin. Inv. Grp., Inc. v. Hammer, 393 F.3d 1223, 1226 (11th Cir. 2004)
([A]rguments not presented in the district court will not be considered for the first time on
appeal.”).
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1304, 1311 (11th Cir. 2019) (alteration in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)).
A plaintiff can show that his constitutional rights were clearly established in
any one of three ways. First, he can point to a materially similar case decided by
the Supreme Court, this Court, or the highest court of the relevant state that clearly
establishes the unlawfulness of the police conduct. Morton, 707 F.3d at 1282.
Second, even in the absence of such precedent, a plaintiff can point to a “broader,
clearly established principle [that] should control the novel facts in [his] situation,”
id. (alterations in original) (quoting Mercado v. City of Orlando, 407 F.3d 1152,
1159 (11th Cir. 2005)), provided that the principle gives the officer “reasonable
warning that the conduct at issue violated constitutional rights,” Hope v. Pelzer,
536 U.S. 730, 740, 122 S. Ct. 2508, 2516 (2002). Third, a plaintiff can show that
the conduct at issue “lies so obviously at the very core of what the [Constitution]
prohibits that the unlawfulness of the conduct was readily apparent to the official,
notwithstanding the lack of case law.” Lee v. Ferraro, 284 F.3d 1188, 1199 (11th
Cir. 2002).
In this case, Hunter claims that the officers violated his clearly established
Fourth Amendment right not to be subjected to excessive force. Viewing the
evidence in the light most favorable to Hunter and drawing all reasonable
inferences in his favor, we find that there is a genuine factual dispute as to whether
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Kirk unconstitutionally subjected Hunter to excessive force in violation of clearly
established law, but there is no dispute that the other officers did not.
A.
The use of deadly force by the police is a seizure subject to the Fourth
Amendment’s requirement of reasonableness. See Tennessee v. Garner, 471 U.S.
1, 7, 105 S. Ct. 1694, 1699 (1985). Reasonableness is a fact-specific inquiry that
turns on such factors as “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham v.
Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989).
Deadly force is reasonable for the purposes of the Fourth Amendment
when an officer (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 escape; and (3) has given some
warning about the possible use of deadly force, if feasible.
Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005) (internal quotation
marks omitted). Although we must construe the facts in the light most favorable to
Hunter, reasonableness is determined from the perspective of the officer, and not
with the “20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.
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1.
With these principles in mind, we find that, on the version of events outlined
above, Kirk did not violate Hunter’s Fourth Amendment rights when he fired his
first round of shots at Hunter. It is undisputed that Kirk was responding to a 911
call of a man holding a child hostage at gunpoint, that gunfire had reportedly been
exchanged, and that Hunter was a suspect in the shooting and was armed. From
Kirk’s perspective, then, he was pursuing an armed suspect who had just been
involved in a shooting. Upon arriving at Hunter’s home, Kirk gave repeated
commands to Hunter to drop his weapon, all of which went unheeded. Instead,
Hunter pointed his weapon at Kirk.
On these facts, Kirk undoubtedly would have had “probable cause to believe
that [Hunter] pose[d] a threat of serious physical harm, either to the officer or to
others,” Garner, 471 U.S. at 11, 105 S. Ct. at 1701, when Hunter pointed his gun at
Kirk. It is axiomatic that when an officer is threatened with deadly force, he may
respond with deadly force to protect himself. See, e.g., Penley v. Eslinger, 605
F.3d 843, 851 (11th Cir. 2010) (finding that an officer’s use of deadly force was
reasonable where the victim refused to drop his weapon after being repeatedly
commanded to do so, and pointed his weapon several times in the officers’
direction); Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009) (per
curiam) (finding that an officer was justified in using deadly force in response to
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the suspect pointing his gun at the officer); see also Ala. Code § 13A–3–23(a)(1)
(“A person may use deadly physical force, and is legally presumed to be justified
in using deadly physical force in self-defense or the defense of another
person . . . if the person reasonably believes that another person is . . . [u]sing or
about to use unlawful deadly physical force.”); Ala. Code § 13A–3–27(b) (“A
peace officer is justified in using deadly physical force upon another person when
and to the extent that he reasonably believes it necessary in order . . . [t]o defend
himself or a third person from what he reasonably believes to be the use or
imminent use of deadly physical force.”). Therefore, at least on the facts as
accepted at the summary judgment stage, Kirk did not violate Hunter’s Fourth
Amendment rights when he fired his first three shots at Hunter.
2.
However, while the use of deadly force may initially be justified, the level of
force that is reasonable may change during the course of a police encounter. See,
e.g., Glasscox v. City of Argo, 903 F.3d 1207, 1214 (11th Cir. 2018). “Graham
dictates unambiguously that the force used by a police officer . . . must be
reasonably proportionate to the need for that force, which is measured by the
severity of the crime, the danger to the officer, and the risk of flight.” Lee, 284
F.3d at 1198. The allowable level of continued force thus diminishes with the
threat.
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Accepting the evidence in the light most favorable to Hunter, a reasonable
jury could find that Hunter no longer posed a threat of serious physical harm to
Kirk when Kirk fired his second round of shots at Hunter. After Kirk fired his first
three shots, Hunter recoiled back into his vehicle. Then, apparently in compliance
with Kirk’s commands to drop his weapon, Hunter dropped his gun through the
opening in the car door. Kirk then, without further warning, fired seven more shots
at Hunter, 17 who was now unarmed. Although Kirk initially may have had reason
to believe that Hunter was armed and posed a danger to Kirk and the other officers,
that belief would no longer be reasonable—and his actions no longer justified
under either § 13A–3–23(a)(1) or § 13A–3–27(b)—once Hunter dropped his gun.18
Hunter was not actively resisting arrest, nor attempting to charge or otherwise
threaten Kirk. Kirk’s firing of seven additional shots against a suspect who
(accepting Hunter’s version of events) had dropped his weapon and was apparently
no longer resisting was disproportionate to the danger Kirk faced.
Nor would a “risk of flight” justify Kirk’s use of deadly force. Although
Hunter initially fled the Marlee Villa Apartments, at the time of the shooting he
was parked in the carport behind his house and sitting in the passenger seat of his
17
Kirk claims to have fired approximately three shots when Hunter first emerged from
the car. A total of ten bullets were fired from Kirk’s weapon, meaning he must have fired seven
shots on his second volley.
18
If Kirk claims he saw Hunter point his gun out of the open car door, then we can
reasonably infer that Kirk would have also seen Hunter drop his gun out of the open car door.
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car. Moreover, by this time Kirk was also aware that at least three other officers
had pursued Hunter to his residence, including Jackson, who was present on the
scene. No reasonable officer under these circumstances would believe that Hunter
posed such a serious risk of escape that it was necessary to use deadly force, given
that Hunter was no longer actively fleeing and was surrounded by at least four
police officers.
On these facts, a reasonable jury could find that Kirk’s continued use of
deadly force was no longer proportionate to the danger presented, and thus his
second round of shots constituted excessive force in violation of the Fourth
Amendment.
Moreover, that Kirk’s continued firing on Hunter constituted excessive force
was clearly established at the time of the shooting in December 2013. In 1985, the
Supreme Court held that an officer may not use deadly force on a suspect who is
unarmed and poses no immediate threat to law enforcement officers at the scene.
See Garner, 471 U.S. at 11, 105 S. Ct. at 1701. Since then, we have held that
using deadly force without warning on an unarmed, non-resisting suspect who
poses no danger is excessive. E.g., Morton, 707 F.3d at 1283; Mercado, 407 F.3d
at 1160 (noting that it is a “clearly established principle that deadly force cannot be
used in non-deadly situations”). For example, in Salvato v. Miley, 790 F.3d 1286
(11th Cir. 2015), we held that our precedents and those of the Supreme Court made
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clear that “[u]sing deadly force, without warning, on an unarmed, retreating
suspect is excessive.” Id. at 1294 (citing Garner, 471 U.S. 1, 105 S. Ct. 1694).
Thus, the officer in Salvato had “fair warning” that she acted unconstitutionally in
July 2012 when she used deadly force against a suspect who, although he had
previously resisted arrest and struck the officers multiple times, was apparently
unarmed and outside of striking distance, and the officer failed to warn the suspect
before shooting him. Id. at 1293–94.
“[A]lthough officials must have fair warning that their acts are
unconstitutional, there need not be a case on all fours with materially identical
facts, . . . so long as the prior decisions gave reasonable warning that the conduct at
issue violated constitutional rights.” Id. at 1294 (alterations in original) (quoting
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004)).
The use of deadly force against a suspect who, though initially dangerous, has been
disarmed or otherwise become non-dangerous, is conduct that lies “so obviously at
the very core of what the Fourth Amendment prohibits that the unlawfulness of the
conduct [is] readily apparent.” Lee, 284 F.3d at 1199 (quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)); see also Salvato, 790 F.3d at
1294. As in Salvato, Kirk had “fair warning” that the continued use of deadly
force against a suspect who, despite having initially threatened Kirk with deadly
force, was now unarmed, out of striking distance, and no longer resisting, violated
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the Fourth Amendment. Therefore, we conclude that it was clearly established in
December 2013 that Kirk’s continued firing at a suspect who no longer presented
an immediate risk of serious harm or flight, because he had relinquished his
weapon (as ordered), constituted excessive force.
B.
Hunter also brought an excessive-force claim against the other officers
involved in the pursuit. He claims that he was shot “multiple times” from “several
directions,” and that the other officers who shot him also subjected him to
excessive force in violation of the Fourth Amendment. Though we must resolve
all reasonable inferences in Hunter’s favor, “we draw these inferences only ‘to the
extent supportable by the record.’” Penley, 605 F.3d at 848 (quoting Scott v.
Harris, 550 U.S. 372, 381 n.8, 127 S. Ct. 1769, 1776 n.8 (2007)). When one
party’s version of events “is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380,
127 S. Ct. at 1776; see also Penley, 605 F.3d at 848 (“[T]he requirement to view
the facts in the nonmoving party’s favor extends to genuine disputes over material
facts and not where all that exists is ‘some metaphysical doubt as to the material
facts.’” (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 106 S. Ct. 1348, 1356 (1986))).
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Although Hunter claims that multiple officers shot him, there is simply no
evidence in the record to indicate that anyone other than Kirk fired his weapon that
day: the only bullet casings recovered were from Kirk’s service weapon. In fact,
all the evidence in the record indicates that the only two officers present on the
scene at the time of the shooting were Kirk and Jackson. Hunter has offered no
evidence contradicting the officers’ statements regarding where they were at the
time of the shooting, and so there is no dispute that Reaves and Chalian were not
present on the scene when the shooting occurred. There is therefore no evidence
from which a reasonable jury could conclude that anyone other than Kirk used any
kind of force at all against Hunter.19
Nonetheless, an officer may still be held liable under § 1983, even if he did
not use excessive force himself, if he was “present at the scene and . . . fail[ed] to
take reasonable steps to protect the victim of another officer’s use of excessive
19
We recognize that a plaintiff is not required to specifically identify which particular
officer used excessive force (and which officers failed to intervene) in order to overcome
summary judgment. See Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (per
curiam). Just because a plaintiff does not see who shot him, does not mean that there is no
evidence he can offer from which a reasonable jury could find an excessive use of force and
assign liability. Id. For example, in Velazquez we found that the plaintiff’s “testimony that two
officers were present, coupled with [the officers’] admission that they were present, permit[ted]
the jury, if it believe[d] that [the plaintiff] was beaten, to find that both of the officers
administered the excessive force or that one beat him while the other failed to intervene.” Id.
That the two officers were present during the alleged beating permitted the inference that one or
both of them beat the plaintiff. Here, on the other hand, there is no evidence suggesting anyone
other than Kirk and Jackson were present at the scene, and no evidence that anyone other than
Kirk fired his weapon. Thus, a jury could not draw a similar inference here, because there is no
dispute that Kirk was the only officer that used any force against Hunter.
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force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (quoting
Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) (per curiam)).
To be held liable on a theory of nonfeasance, the officer must have been in a
position to intervene but failed to do so. Priester, 208 F.3d at 924.
But again, because Hunter has offered no evidence contradicting the
statements by the officers that they were not present at the time of the shooting, he
cannot show that any of the officers were in a position to intervene. Chalian only
heard the first shots as he parked his car on a side street, and he was on the other
side of the house when the second round of shots were fired. Reaves also heard the
first shots only as he was exiting his car. Although he saw Kirk fire the second
round of shots from a distance, he maintains that he could not see Hunter from his
position. Thus, Hunter has offered no evidence indicating that Reaves or Chalian
were in a position to intervene and prevent Kirk’s use of excessive force. See
Ensley v. Soper, 142 F.3d 1402, 1408 (11th Cir. 1998) (holding that an officer was
not “in a position to intervene” where there was no evidence from which a jury
could find that the officer observed or could have observed the excessive force).
While Jackson was present at the time of the shooting, he claims in his
affidavit that he had a limited view of the carport where Hunter parked. From
where he was standing beside the house, he saw Kirk fire his weapon at Hunter,
but could not see where Hunter was or what he was doing at the time of the
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shooting. Therefore, although Jackson witnessed Kirk’s use of force against
Hunter, he could not have assessed at the time whether that use of force was
excessive. In other words, because he could not observe Hunter, and in particular
whether Hunter pointed a weapon at or otherwise threatened Kirk, he could not
know at the time whether Kirk’s use of force was justified or unlawful. Jackson
thus cannot be held liable for failing to intervene where he could not have known
at the time that what he was observing amounted to a constitutional violation.
In sum, Hunter has not presented any evidence from which a reasonable jury
could find that Jackson, Chalian, or Reaves were involved in the unlawful
shooting, or were in a position to intervene yet failed to do so. They are therefore
entitled to qualified immunity on Hunter’s excessive force and failure to intervene
claims.
IV.
We now turn to Hunter’s other claims. Hunter brought assault and battery
and tort of outrage claims against the officers under state law based on the
shooting. The officers argue that they are immune from suit on these state-law
claims under Alabama’s discretionary-function immunity.
Alabama law provides police officers with “immunity from tort liability
arising out of his or her conduct in performance of any discretionary function
within the line and scope of his or her law enforcement duties.” Ala. Code § 6–5–
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338(a). The restatement of state-agent immunity set out by the Alabama Supreme
Court in Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), governs whether the
officers are entitled to immunity under § 6–5–338(a). Brown v. City of Huntsville,
608 F.3d 724, 741 (11th Cir. 2010) (citing Ex parte City of Tuskegee, 932 So. 2d
895, 904 (Ala. 2005)). The test laid out in Cranman, as modified by Hollis v. City
of Brighton, 950 So. 2d 300, 309 (Ala. 2006), provides in relevant part:
A State agent shall be immune from civil liability in his or her personal
capacity when the conduct made the basis of the claim against the agent
is based upon the agent’s . . . exercising judgment in the enforcement
of the criminal laws of the State, including, but not limited to, law-
enforcement officers’ arresting or attempting to arrest persons, or
serving as peace officers under circumstances entitling such officers to
immunity pursuant to § 6–5–338(a).
Ex parte City of Homewood, 231 So. 3d 1082, 1087 (Ala. 2017) (internal quotation
marks and citations omitted). In other words, law enforcement officers are
immune from tort liability for conduct within the scope of their discretionary law
enforcement duties. City of Huntsville, 608 F.3d at 741. Nonetheless, a state agent
is not entitled to state-agent immunity if (1) the U.S. Constitution, federal law, the
state Constitution, or state laws, rules, or regulations enacted or promulgated for
the purpose of regulating the activities of a governmental agency, require
otherwise; or (2) the agent acts “willfully, maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a mistaken interpretation of the law.” City of
Homewood, 231 So. 3d at 1086; Cranman, 792 So. 2d at 405.
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The test for state-agent immunity follows a similar burden-shifting
framework as the test for qualified immunity. First, the state agent asserting
immunity “bears the burden of demonstrating that the plaintiff’s claims arise from
a function that would entitle the State agent to immunity.” Ex parte City of
Montgomery, 272 So. 3d 155, 161 (Ala. 2018) (quoting Ex parte Kennedy, 992 So.
2d 1276, 1282–83 (Ala. 2008)). The burden then shifts to the plaintiff to show that
one of the two exceptions to immunity recognized in Cranman applies. Id.
Because the officers here were clearly performing discretionary law enforcement
functions at the time of the shooting, the burden shifts to Hunter to show either that
they failed to discharge their duties in accordance with the law or that they acted
willfully, maliciously, fraudulently, in bad faith, beyond their authority, or under a
mistaken interpretation of the law.
The Alabama Supreme Court has largely equated qualified immunity with
discretionary-function immunity, and so the same facts which establish an
entitlement to qualified immunity may also establish that the officers are entitled to
discretionary-function immunity. Sheth v. Webster, 145 F.3d 1231, 1240 (11th Cir.
1998) (per curiam); id. at 1239 (“Under both Alabama law and federal law, the
core issue is whether a defendant violated clearly established law.”).
For the same reasons that Jackson, Reaves, and Chalian are entitled to
qualified immunity on Hunter’s § 1983 claim, we find that they are also entitled to
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discretionary-function immunity on Hunter’s state-law claims. Hunter offers no
evidence indicating that Jackson, Reaves, or Chalian used any force against him, or
that they were in a position to prevent any unlawful use of force against him.
Therefore, because Hunter cannot show that Jackson, Reaves, or Chalian
participated in or were otherwise involved in the shooting, he cannot show that
they took any actions related to the shooting which were “willful[ ], malicious[ ],
fraudulent[ ], in bad faith, beyond [their] authority, or under a mistaken
interpretation of the law.”
By the same token, the same facts that establish that Kirk is not entitled to
qualified immunity also establish that he is not entitled to discretionary-function
immunity. As we explained above, accepting the facts in the light most favorable
to Hunter, Kirk acted beyond his authority and in violation of clearly established
Fourth Amendment law when he continued to shoot at Hunter after Hunter
dropped his gun. The U.S. Constitution required Kirk to act otherwise. See
Cranman, 792 So. 2d at 405. For the same reasons we deny Kirk qualified
immunity on Hunter’s § 1983 claim, we also deny him discretionary-function
immunity on Hunter’s state-law claims related to the shooting.
Kirk is also not entitled to immunity under § 13A–3–23(d)(1). Under
Alabama law, a person who is justified in using deadly physical force “is immune
from criminal prosecution and civil action for the use of such force, unless the
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force was determined to be unlawful.” § 13A–3–23(d)(1). Although Kirk might
have been justified in firing his initial three shots against Hunter in self-defense,
roe§ 13A–3–23(a)(1), he would not have been entitled to use deadly force in self-
defense when he fired his next seven shots. He is therefore not entitled to
immunity from suit under § 13A–3–23(d)(1) for this latter use of deadly physical
force.
In sum: Jackson, Reaves, and Chalian are entitled to immunity on Hunter’s
state-law claims related to the shooting, but Kirk is not.
V.
For the foregoing reasons, we AFFIRM the District Court’s denial of
qualified and state-law immunity as to Kirk and REVERSE the District Court’s
denial of qualified and state-law immunity as to Jackson, Reaves, and Chalian.
SO ORDERED.
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GILMAN, Circuit Judge, concurring:
I fully concur in the result reached by the lead opinion; i.e., that Officer Kirk
is not entitled to qualified immunity as a matter of law, but that the other officers
are. The reason that I write separately, however, is because I see no reason for us
as appellate judges to weigh in on which one of the three gun-pointing “scenarios”
is most favorable to Hunter.
As well stated in the lead opinion, “[u]ltimately[] a jury must resolve the fact
question regarding how many times Hunter pointed his weapon at Kirk and when.”
(Lead Op. at 17) Contrary to the wording in the lead opinion, this does not
“require[] us to assume that the events of December 16, 2013, unfolded as outlined
in the second factual scenario.” (Id.) Since we are holding that Hunter is entitled
to a jury trial regarding his entire interaction with Officer Kirk, this means that the
jury will be free to decide for itself which scenario, if any, favors Hunter. I thus
regard the lead opinion’s focus on scenario two as unnecessary dicta.
34