Monteria Najuda Robinson v. William Sauls

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11280
____________________
MONTERIA NAJUDA ROBINSON,
as the natural parent of Jamarion Rashad Robinson,
and The of Estate of Jamarion Rashad Robinson,
Plaintiff-Appellant,
versus
WILLIAM SAULS,
Atlanta Police Officer,
STEVE SCHRECKENGOST,
Atlanta Police Detective,
STEVE O’HARE,
Atlanta Police Detective,
KRISTOPHER HUTCHENS,
Clayton County Police Officer,
JOSHUA MAUNEY,
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2 Opinion of the Court 21-11280
Fayette County Sheriff’s Officer, et al.,
Defendants-Appellees,
DANIEL DOYLE,
Fulton County Detective, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-00131-TCB
____________________
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
JILL PRYOR, Circuit Judge:
This case arises out of the shooting death of Jamarion Rob-
inson. It requires us to decide whether video evidence creates a
genuine dispute of material fact concerning whether law enforce-
ment officers used excessive force while trying to arrest Mr. Rob-
inson.
A group of Deputy United States Marshals and police offic-
ers from several counties in the Atlanta area—working together in
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21-11280 Opinion of the Court 3
a joint law enforcement project called the Southeast Regional Fu-
gitive Task Force (“Task Force”)—attempted to execute two arrest
warrants against Mr. Robinson at his girlfriend’s townhouse apart-
ment. To execute the warrants, the Task Force team knocked on
the door of the apartment and asked several times for Mr. Robin-
son to come out. When Mr. Robinson failed to appear, the Task
Force team breached the apartment’s front door. Three members
of the team, Inspector Eric Heinze, Officer Kristopher Hutchens,
and Detective Danny Doyle, entered the apartment. 1 The three of-
ficers instructed Mr. Robinson to surrender. Mr. Robinson ap-
peared on the apartment’s second floor landing, pointing a gun at
the officers. The three officers fired dozens of rounds at Mr. Rob-
inson. They continued to shoot after he fell to the floor near the
top of the stairs. To determine whether Mr. Robinson remained a
threat, the Task Force team then detonated a flashbang grenade
near him, and he did not react. The Task Force team ended the
encounter by placing him in handcuffs and calling for medical sup-
port. Mr. Robinson died at the scene.
A bystander in a neighboring apartment building partially
recorded the encounter. The video recording does not show what
occurred inside the apartment during the shooting. It does,
1
At the time of the shooting, Eric Heinze was a Deputy United States Marshal
Inspector. Kristopher Hutchens was an officer with the Clayton County Police
Department. Danny Doyle was a detective with the Fulton County Police De-
partment. We refer to each of them as “Officer” for ease of reference.
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4 Opinion of the Court 21-11280
however, include audio of a gunfire burst that took place after the
flashbang exploded.
Mr. Robinson’s mother, Monteria Robinson, filed claims un-
der Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against Officers Heinze, Hutchens,
and Doyle, alleging that they violated her son’s Fourth Amend-
ment rights by using excessive force in attempting to arrest him.
The three Task Force officers sought summary judgment on the
Bivens claims. They argued that they were entitled to qualified im-
munity because they used a reasonable level of force under the cir-
cumstances. Ms. Robinson opposed the motion, arguing that there
existed questions of fact material to whether the officers used ex-
cessive force at different points in time during their encounter with
her son. Ms. Robinson relied on the bystander video, along with
other evidence. The district court granted summary judgment to
Officers Heinze, Hutchens, and Doyle based on qualified immun-
ity.
Now, on appeal, Ms. Robinson renews her arguments that
summary judgment should not have been granted because of gen-
uine disputes of material fact relevant to whether the three officers
used excessive force. After careful consideration, and with the ben-
efit of oral argument, we affirm in part and reverse in part. We
agree with the district court that summary judgment was appropri-
ate on Ms. Robinson’s claim against Officer Hutchens and on her
claims against all three officers that are predicated on their actions
before the flashbang detonated. But we agree with Ms. Robinson
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21-11280 Opinion of the Court 5
that the bystander video created a genuine dispute of material fact
as to whether Officers Doyle and Heinze used excessive force after
the flashbang exploded. The district court therefore erred by grant-
ing summary judgment to Officers Doyle and Heinze on that issue.
I. BACKGROUND
In this section, we begin by describing why the Task Force
team sought to arrest Mr. Robinson. We then turn to the shooting
and the Georgia Bureau of Investigation’s (“GBI”) subsequent in-
vestigation. We conclude with a history of the proceedings that fol-
lowed.
A. Events Leading to the Attempted Arrest of Mr. Robinson
A few weeks before the shooting, Ms. Robinson called the
police when her son attempted to set her house on fire. Mr. Robin-
son left before the police arrived, but the Gwinnett County Police
Department issued a warrant for his arrest. A short time later, two
Atlanta Police Department officers encountered Mr. Robinson
while responding to a call about a suspicious person. Mr. Robinson
pointed a handgun at one of the officers and fled the scene. A sec-
ond arrest warrant was issued against Mr. Robinson for aggravated
assault against a police officer.
The local police referred the case to the Task Force. A Task
Force officer spoke with Ms. Robinson, who told him that her son
“had become increasingly unstable, violent, and unpredictable.”
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Doc. 248-5 at 3. 2 She also told him that Mr. Robinson might be suf-
fering from unmedicated mental health issues. After some investi-
gation, the Task Force officer determined that Mr. Robinson was
living at his girlfriend’s townhouse apartment.
A Task Force team that included Officers Heinze, Hutchens,
Doyle, and several other officers assembled in a parking lot near
the apartment complex to prepare to arrest Mr. Robinson. Officer
Heinze carried a tactical shield and a Glock 22 handgun. Officer
Hutchens had an MP5 rifle set to semi-automatic. The MP5 did
“not have a burst fire setting.” Doc. 248-4 at 3. Officer Doyle carried
an H&K UMP .40—a submachine gun capable of shooting in
bursts. The team discussed Mr. Robinson’s attempted arson, his
previous encounter with police, his potential mental health issues,
and the possibility that he was carrying a gun. They planned to in-
itiate a knock-and-announce at the apartment door to give Mr.
Robinson an opportunity to surrender. If he did not respond, the
team agreed, they would breach the apartment door.
B. The Attempted Arrest and Shooting
Most relevant to the issues on appeal, the record contains
evidence of the Task Force team’s account of the shooting. It also
includes a video recording taken by a neighbor that shows the out-
side of the apartment while the shooting took place. We begin with
2
“Doc.” numbers refer to district court docket entries.
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the Task Force team’s description of the shooting and then turn to
the video.
1. The Task Force Team’s Account
According to the testimony and affidavits of the officers in-
volved, the Task Force team moved to the front door of the apart-
ment with Officer Heinze at the front of the team. Officer Hutch-
ens knocked on the door, stated that the police were outside, and
asked Mr. Robinson to come out. He repeated this several times.
Mr. Robinson did not come to the door. Another Task Force officer
then announced that they would breach the door if Mr. Robinson
refused to turn himself in. When Mr. Robinson did not respond,
the Task Force team breached the door with a battering ram.
The apartment door opened into a living room area on the
left and a staircase leading to the second floor on the right. Officer
Heinze remained at the front of the team closest to the door while
Officers Hutchens and Doyle were in the second and third posi-
tions behind him. The three Task Force officers again announced
their presence and asked Mr. Robinson to come out. Officer Heinze
heard noise coming from the second floor of the apartment and
directed his attention toward the staircase. A wall obstructed Of-
ficer Heinze’s view of the second-floor landing, but he could see
feet near the top of the stairs. He instructed Mr. Robinson to come
down the stairs slowly with his hands up. As Mr. Robinson began
to walk down the stairs, Officer Heinze noticed that his “body was
slightly bent” and that he had “something cupped in both of his
hands.” Doc. 248-3 at 7–8. As Officer Doyle shouted that Mr.
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Robinson had a gun, Officer Heinze identified a semiautomatic
handgun in Mr. Robinson’s hands. According to Officer Heinze,
Mr. Robinson pointed the gun at him. Officer Heinze then “dis-
charged [his] firearm several times.” Id. at 8. Officer Doyle also
fired his weapon and saw some of his shots hit Mr. Robinson. Mr.
Robinson ran back up the stairs. The officers stopped shooting and
commanded Mr. Robinson to put the gun down and surrender.
For the next few minutes, Mr. Robinson periodically reap-
peared on the stairs, pointing his gun at the three officers. Officer
Hutchens fired at Mr. Robinson the first time he reappeared. Offic-
ers Heinze and Doyle also fired at Mr. Robinson when he pointed
his gun at them. They continued yelling to Mr. Robinson to put
down his gun. The three officers and another member of the Task
Force team heard two gunshot sounds come from Mr. Robinson’s
direction. They also heard what they identified as a slide moving
on Mr. Robinson’s gun, a sound consistent with reloading the gun.
Officer Doyle then saw Mr. Robinson “partially step[] out
again.” Doc. 230-2 at 36. He observed several gunshot wounds on
Mr. Robinson’s left hand and chest. Mr. Robinson pointed his gun
at the officers, and Officer Doyle shot him in his left hip, causing
him to fall down on the stairs. Mr. Robinson “fell to the floor near
the top of the stairs with his upper torso on the landing and his
posterior and his legs positioned down the stairs.” Doc. 248-3 at 10.
Officers Heinze, Hutchens, and Doyle moved forward to the base
of the stairs to get a better view of Mr. Robinson. Mr. Robinson still
held the gun in his right hand. The three officers instructed him to
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21-11280 Opinion of the Court 9
drop the gun. Mr. Robinson “leaned up and moved the gun in a
manner consistent with pointing it in the direction” of the officers.
Id. at 11. They fired at Mr. Robinson. Officer Doyle later told the
GBI that he fired at Mr. Robinson a second time when Mr. Robin-
son tried to raise his gun again.
After that series of gunshots, Officer Heinze ordered Mr.
Robinson to show them his hands. Mr. Robinson did not respond,
but Officer Heinze could see that he was still breathing. The offic-
ers were unsure whether Mr. Robinson still had a gun. To test
whether Mr. Robinson remained a danger, Officer Hutchens threw
a flashbang device behind Mr. Robinson. The device exploded, but
Mr. Robinson did not react. After Mr. Robinson failed to respond,
Officer Heinze stopped viewing him as a threat. Likewise, Officer
Doyle “was confident that [Mr. Robinson] was unconscious.” Doc.
277-7 at 16:41–:43.
According to Officers Heinze and Hutchens, no member of
the Task Force team fired a weapon after the flashbang exploded.
The Task Force team deployed a reconnaissance robot, which
showed that Mr. Robinson no longer had a gun. Officer Hutchens
placed Mr. Robinson in handcuffs and called for a tactical medic to
administer first aid. The elapsed time between breaching the apart-
ment door and placing Mr. Robinson in handcuffs was “approxi-
mately three to five minutes.” Doc. 248-4 at 13. Mr. Robinson died
at the scene.
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2. The Bystander Video
A bystander from a nearby apartment in another building
recorded a video that began in the middle of the attempted arrest.
Because the bystander was filming from next door, the video did
not show Mr. Robinson or anything that took place inside his girl-
friend’s apartment. The recording showed the following outside
the apartment.
Eight officers were bunched together outside the apart-
ment’s open front door. The officer closest to the door fired his gun
into the apartment. Less than a minute later, an officer stated, “Put
the gun down son and come out.” Doc. 263-9 at :35. Two officers
standing in the doorway of the apartment then fired their weapons
while an officer holding a shield moved to the apartment door.
The bystander then moved inside his own apartment, which
obstructed the camera lens’s view of the shooting. Several rounds
of gunfire were audible, however. Approximately two and a half
minutes into the video, there was a loud popping noise. A Task
Force team member later identified the noise as the flashbang ex-
ploding. About 20 seconds after the flashbang exploded, there was
another burst of gunfire. At this sound, one of the officers standing
outside of the apartment reacted by turning around to face the
apartment door.
A Task Force team member who reviewed the video testi-
fied that the gunfire-burst sound was consistent with the noise pro-
duced by Officer Doyle’s H&K UMP .40. He testified that Officer
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21-11280 Opinion of the Court 11
Heinze’s weapon also could have produced a noise like the sound
in the video if Officer Heinze fired “in the right sequence” along-
side someone else who was shooting. Doc. 238 at 16.
C. The Investigation After the Shooting
The GBI conducted an inquiry into the shooting. While
searching the apartment, GBI agents found a bloody HiPoint .380
pistol at the top of the stairwell in the apartment. They also found
three .380 shell cartridges and two spent .380 bullets. GBI agents
observed defects in the stairwell wall that were consistent with
someone shooting from the top of the steps. The investigators test-
fired the recovered pistol and determined that it worked. The GBI
then performed a forensic DNA test, which matched the blood on
the pistol with Mr. Robinson’s blood. The GBI concluded that the
pistol fired the recovered .380 cartridges and one of the .380 bullets;
the other bullet was too deformed to match it with the pistol. Based
on his experience and review of the crime scene evidence, the GBI
agent assigned to the investigation concluded that Mr. Robinson
possessed a HiPoint .380 pistol and fired it at the Task Force offic-
ers.
The GBI estimated that the Task Force team fired about 100
bullets during their encounter with Mr. Robinson. An autopsy re-
covered 43 bullets and bullet fragments from Mr. Robinson’s body
and identified bullet wounds in his chest, pelvis, legs, and hands.
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12 Opinion of the Court 21-11280
The medical examiner did not dissect the wound tracks to match
the entry wounds on Mr. Robinson’s body with his exit wounds. 3
A GBI agent found gunpowder residue on Mr. Robinson’s
shirt. But the test that identified the gunpowder residue could not
determine whether it came from the HiPoint .380 pistol or another
weapon. The test also did not reveal the distance from which Mr.
Robinson was shot; thus, it was inconclusive as to Ms. Robinson’s
contention that he was shot from “within two or three feet.” Doc.
227 at 33.
3
During oral argument, Ms. Robinson’s counsel referred to photographs
which, he represented, show two bullets being removed from the apartment’s
second-floor landing. Ms. Robinson failed to cite or rely on these photographs
in her summary judgment filings in the district court. Because Ms. Robinson
never brought the photographs to the district court’s attention, the court did
not err by not considering them. See Chavez v. Sec’y Fla. Dep’t of Corrs., 647
F.3d 1057, 1061 (11th Cir. 2011) (“[D]istrict court judges are not required to
ferret out delectable facts buried in a massive record[.]”). In addition, Ms. Rob-
inson submitted no witness testimony or other evidence that would authenti-
cate the photographs in accordance with Federal Rule of Evidence 901. See
United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. Unit B Apr. 1981) (“[I]t
is sufficient if [a witness qualifying a photograph] recognizes and identifies the
object depicted and testifies that the photograph fairly and correctly represents
it.”); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981)
(en banc) (adopting as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to October 1, 1981). For these reasons, the district
court did not err by failing to consider the photographs, and we will not con-
sider them on appeal.
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D. Procedural History
After the shooting, Ms. Robinson filed suit. She amended
her complaint multiple times and ultimately asserted, among other
things, Bivens claims against Officers Heinze, Hutchens, and
Doyle. 4 She alleged that the three Task Force officers used exces-
sive force in violation of her son’s Fourth Amendment rights. The
officers moved for summary judgment on Ms. Robinson’s Bivens
4
Ms. Robinson also asserted excessive-force claims against other members of
the Task Force team: William Sauls, Steve Schreckengost, Steve O’Hare,
Joshua Mauney, and “Agent Tez,” who was later identified as Santez Kindred.
In addition, she asserted a conspiracy claim and state-law tort claims against
these officers and against Officers Heinze, Hutchens, and Doyle. For Ms. Rob-
inson’s state-law claims, the district court substituted the United States in place
of the officers in accordance with 28 U.S.C. § 2679(c). The district court then
granted summary judgment to the defendants on all claims. On appeal, Ms.
Robinson no longer contends that Mr. Sauls, Mr. Schreckengost, Mr. O’Hare,
Mr. Mauney, or Mr. Kindred used excessive force. In addition, Ms. Robinson’s
initial appellate brief makes no mention of her state-law tort-law claims and
makes only a passing reference to her conspiracy claim. “Any issue that an
appellant wants the Court to address should be specifically and clearly identi-
fied in the brief.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004). Because Ms. Robinson failed to adequately present these
claims on appeal, she has waived them. Accordingly, we affirm the summary
judgment in favor of Mr. Sauls, Mr. Schreckengost, Mr. O’Hare, Mr. Mauney,
and Mr. Kindred on Ms. Robinson’s excessive force claims against them. And
we affirm the summary judgment to all defendants on Ms. Robinson’s con-
spiracy and state-law tort claims for the same reason.
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14 Opinion of the Court 21-11280
claims.5 They argued that qualified immunity protected them be-
cause their use of force was objectively reasonable.
Ms. Robinson opposed the motion, contending that multi-
ple issues of fact existed concerning the officers’ use of force. She
argued that there was a question of fact concerning whether her
son pointed a gun at the Task Force team. Next, she argued that
the officers used excessive force when they continued to fire at Mr.
Robinson after he fell. She contended that her son could no longer
hold a gun once he fell. To support this argument, Ms. Robinson
relied on expert testimony from Dr. Neal Small, an orthopedic sur-
geon. Dr. Small testified that Mr. Robinson lost his ability to stand
and to fire a gun due to the gunshot wounds he received. He
opined that the damage to Mr. Robinson’s right hand was ex-
tremely unlikely to have occurred while Mr. Robinson was in a su-
pine or prone position. But he acknowledged that he did not know
“when Mr. Robinson would have been incapable or capable of fir-
ing a weapon or raising and pointing a weapon” and that he could
“not offer[] any opinions about when during this incident precisely
Mr. Robinson became incapable of doing so.” Doc. 234 at 34. Ms.
Robinson concluded by arguing that the video evidence
5
Officer Doyle died while this action was pending. The district court substi-
tuted for Officer Doyle the administrator of his estate, Pamela Doyle. The dis-
trict court allowed Pamela Doyle to adopt Officers Heinze and Hutchens’ mo-
tion for summary judgment.
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contradicted the officers’ statements that they did not fire at Mr.
Robinson after the flashbang revealed that he was unresponsive.
The district court issued an order granting summary judg-
ment to Officers Heinze, Hutchens, and Doyle. The court con-
cluded that the three officers’ use of force was reasonable and thus
did not violate Mr. Robinson’s constitutional rights. It rejected Ms.
Robinson’s argument that there existed a genuine dispute of fact
about whether her son had a gun. Next, it determined that the rec-
ord evidence failed to create a genuine dispute of fact about
whether the officers shot an unarmed Mr. Robinson after he ini-
tially fell. In addition, the district court disregarded the bystander
video, noting that it was “not sufficiently probative to create a gen-
uine issue for trial as to whether Defendants used deadly force after
Robinson became unresponsive.” Doc. 303 at 39.
Ms. Robinson timely appealed.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment
de novo, applying the same legal standards as the district court.
Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293
(11th Cir. 2006). Summary judgment is appropriate only “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). The court must draw all reasonable in-
ferences in favor of the non-moving party. Welch v. Celotex Corp.,
951 F.2d 1235, 1237 (11th Cir. 1992).
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16 Opinion of the Court 21-11280
“‘When opposing parties tell two different stories, one of
which is blatantly contradicted by the record [as with a video re-
cording of the incident], so that no reasonable jury could believe it,
a court should not adopt that version of the facts.’” Manners v.
Cannella, 891 F.3d 959, 967 (11th Cir. 2018) (alteration adopted)
(quoting Scott v. Harrison, 550 U.S. 372, 380 (2007)).
III. DISCUSSION
Ms. Robinson contends that the district court erred in con-
cluding that Officers Heinze, Hutchens, and Doyle were entitled to
qualified immunity. After careful review, we disagree as to Officer
Hutchens. The district court correctly ruled that Officer Hutchens
was entitled to qualified immunity. We agree with Ms. Robinson,
however, that the district court erred by granting summary judg-
ment to Officers Doyle and Heinze based on qualified immunity.
To receive qualified immunity, an official “must establish
that he or she acted within the scope of discretionary authority
when the allegedly wrongful acts occurred.” Hardigree v. Lofton,
992 F.3d 1216, 1223 (11th Cir. 2021) (internal quotation marks omit-
ted). There is no dispute that the three Task Force officers acted
within their discretionary authority, so the burden shifts to Ms.
Robinson to “show that: (1) the defendant violated a constitutional
right, and (2) this right was clearly established at the time of the
alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1264 (11th Cir. 2004). We begin by examining whether the
officers violated Mr. Robinson’s Fourth Amendment rights. We
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then consider whether those rights were clearly established at that
time.
A. A Jury Could Reasonably Conclude that Officers Doyle
and/or Heinze Violated Mr. Robinson’s Fourth Amend-
ment Rights by Using Excessive Force After the Flashbang
Revealed that Mr. Robinson Was Unresponsive.
“The Fourth Amendment’s freedom from unreasonable
searches and seizures encompasses the plain right to be free from
the use of excess force in the course of an arrest.” Lee v. Ferraro,
284 F.3d 1188, 1197 (11th Cir. 2002). “Reasonableness is the touch-
stone for all excessive force claims, regardless of whether the force
used was deadly.” Hammett v. Paulding Cnty., 875 F.3d 1036, 1048
(11th Cir. 2017). In assessing reasonableness, “we judge the officer’s
use of force on a case-by-case basis from the perspective of a rea-
sonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Johnson v. City of Miami Beach, 18 F.4th 1267, 1272
(11th Cir. 2021) (internal quotation marks omitted). “As to deadly
force, a police officer may use such force to dispel a threat of seri-
ous physical harm to either the officer or others, or to prevent the
escape of a suspect who threatens this harm.” Singletary v. Vargas,
804 F.3d 1174, 1181 (11th Cir. 2015).
Ms. Robinson largely concedes that the three Task Force of-
ficers acted reasonably in firing the first shots: the evidence showed
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18 Opinion of the Court 21-11280
that her son pointed a gun at them.6 Instead she asserts that the
three officers used excessive force by continuing to shoot. She ar-
gues that the evidence, viewed in her favor, shows that the officers
continued shooting at Mr. Robinson after he fell and could no
longer hold a gun. In addition, she contends that the video evi-
dence shows the officers used excessive force after the flashbang
exploded. We examine these arguments in turn.
1. The Shooting After Mr. Robinson Fell
Ms. Robinson relies primarily on Dr. Small’s testimony to
support her argument that the three Task Force officers fired at her
son after he fell and could no longer hold a gun. Dr. Small testified
that at some point Mr. Robinson became physically incapable of
6
Ms. Robinson’s 30-page brief contains two sentences disputing the district
court’s finding that her son possessed an operable HiPoint .380 pistol. We con-
sider this issue abandoned. “A passing reference to an issue in a brief is not
enough, and the failure to make arguments and cite authorities in support of
an issue waives it.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,
1319 (11th Cir. 2012). But even if we were to consider Ms. Robinson’s argu-
ment, it would fail. Ms. Robinson points out that a GBI agent described the
pistol as rusty and in poor condition. True, but the GBI agent was able to fire
the gun, demonstrating that it was operable. Ms. Robinson also calls attention
to the lack of fingerprints on the pistol. But a GBI agent assigned to investigate
the shooting testified that it was “not uncommon” to find no fingerprints on a
gun. Doc. 231 at 38. One of our sister circuits has noted that “successful devel-
opment of latent prints on firearms is difficult to achieve” and that “[i]n reality,
very few identifiable latent prints are found on firearms.” United States v. Pal-
adino, 401 F.3d 471, 478 (7th Cir. 2005) (internal quotation marks omitted).
Under the facts of this case, the lack of fingerprints does not create a triable
issue as to whether Mr. Robinson had a gun.
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standing or shooting a gun. Ms. Robinson argues that the district
court incorrectly discounted this evidence by making “improper
credibility determinations” concerning Dr. Small. Appellant Br. at
19. We disagree.
The problem with Dr. Small’s testimony is that he acknowl-
edged he did not know “when Mr. Robinson would have been in-
capable or capable of firing a weapon or raising and pointing a
weapon.” Doc. 234 at 34. Dr. Small further testified that Mr. Rob-
inson most likely did not receive the bullet damage to his hands
while he was in a supine or prone position. According to Ms. Rob-
inson, this evidence shows that her son’s hands must have been
injured before he fell. But Dr. Small also opined that if Mr. Robin-
son was “in a seated position[,]” then he was “[m]uch more likely”
to have received gunshot damage to his hands. Id. The sitting pos-
ture Dr. Small described is consistent with Officer Heinze’s account
that after Mr. Robinson fell, he “leaned up and moved the gun in a
manner consistent with pointing it in the direction of” Officer
Heinze and his team. Doc. 248-3 at 11.
Ms. Robinson next points to Officer Doyle’s statement to the
GBI during its investigation of the incident. Officer Doyle told the
GBI that Mr. Robinson had “several gunshot wounds” on his “left
hand and chest” while he was still standing. Doc. 230-2 at 36. This
evidence does not create a genuine dispute of fact about Mr. Rob-
inson’s ability to hold a gun, though, because Officer Doyle also
stated that Mr. Robinson held the gun in his right hand after he fell.
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20 Opinion of the Court 21-11280
In summary, the evidence viewed in Ms. Robinson’s favor
shows that the officers’ gunfire injured Mr. Robinson’s left hand
before he fell. At some point during the shooting, he lost the ability
to stand or hold a gun in either hand. And according to Ms. Robin-
son’s own expert, it was very unlikely that Mr. Robinson sustained
these injuries while in a supine or prone position. None of this evi-
dence conflicts with the officers’ account that Mr. Robinson fell but
then “leaned up” and pointed his gun at them with his right hand.
“It is axiomatic that when an officer is threatened with deadly force,
he may respond with deadly force to protect himself.” Hunter v.
City of Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019). We thus con-
clude that the district court correctly granted summary judgment
to Officers Heinze, Hutchens, and Doyle to the extent Ms. Robin-
son’s Bivens claims were based on their shooting Mr. Robinson af-
ter he fell.
2. The Shooting After the Flashbang
Ms. Robinson also claims that the three Task Force officers
used excessive force after the flashbang exploded. The district court
granted summary judgment on this portion of Ms. Robinson’s
claim after determining that the bystander video did not “create a
genuine issue for trial as to whether Defendants used deadly force
after Robinson became unresponsive.” Doc. 303 at 39. After re-
viewing the video, we agree with the district court that summary
judgment was appropriate for Officer Hutchens because no evi-
dence showed that he fired after the flashbang exploded. We con-
clude, however, that there is a genuine dispute of material fact as
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21-11280 Opinion of the Court 21
to whether Officers Doyle and Heinze used excessive force by
shooting Mr. Robinson after he became unresponsive.
At the outset, it is undisputed that Mr. Robinson did not re-
act to the flashbang’s explosion. At this point, the officers believed
that Mr. Robinson was unconscious, and they no longer considered
him a threat. Nonetheless, a burst of gunfire was audible on the
bystander video approximately 20 seconds after the flashbang ex-
ploded. The gunfire sound on the video was consistent with the
burst noise made by Officer Doyle’s H&K UMP .40. There was also
testimony that Officer Heinze’s gun could have produced the
sound on the video if he fired it “in the right sequence” with an-
other shooter. Doc. 238 at 16. By contrast, Officer Hutchens’ MP5
was incapable of producing the sound on the video because it
lacked “a burst fire setting.” Doc. 248-4 at 3. The district court
properly granted summary judgment to Officer Hutchens on this
claim, but the court failed to account for the audio evidence in the
bystander video in granting summary judgment to Officers Heinze
and Doyle.
Officer Heinze testified that he and Officer Doyle shot at Mr.
Robinson only while he brandished a gun at them. Therefore, they
argue, Mr. Robinson could not have received his wounds after the
flashbang revealed he was incapacitated. Officer Heinze’s testi-
mony is contradicted by the burst fire noise on the bystander video,
however. See Manners, 891 F.3d at 967. Based on the video, a rea-
sonable jury could find that Officer Heinze misrepresented what
occurred in the apartment after the flashbang exploded and that
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22 Opinion of the Court 21-11280
Mr. Robinson received some of his bullet wounds from the burst
fire after the flashbang. Cf. Montano v. City of Chicago, 535 F.3d
558, 567 (7th Cir. 2008) (“Where a witness’s testimony is a com-
pound of truth and falsity, the prudent course is to permit the jury
to sort through it.” (internal quotation marks omitted)).
The officers also argue that the video failed to show: “where
the alleged shots were fired, or by whom.” Appellee Br. at 44. It is
true that the video did not show where the shots originated, but it
showed an officer standing outside of the apartment reacting to the
burst-fire noise by turning back to face the door. So the shots could
have been fired only by the officers who were inside the apartment.
The evidence, viewed in the light most favorable to Ms.
Robinson, created a genuine issue of material fact concerning
whether Officer Doyle individually or Officers Doyle and Heinze
together shot Mr. Robinson after the flashbang exploded.
We next turn to whether the shooting that occurred after
the flashbang exploded violated Mr. Robinson’s Fourth Amend-
ment rights. In Tennessee v. Garner, the Supreme Court laid out
three factors to guide courts’ Fourth Amendment reasonableness
analysis in cases involving deadly force. Tennessee v. Garner, 471
US. 1, 11–12 (1985). Under Garner, we consider whether the officer
who used deadly force: (1) had “probable cause to believe that the
suspect pose[d] a threat of serious physical harm, either to the of-
ficer or to others,” or that the suspect had “committed a crime in-
volving the infliction or threatened infliction of serious physical
harm[;]” (2) reasonably believed that the use of deadly force was
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21-11280 Opinion of the Court 23
“necessary to prevent escape[;]” and (3) had given some warning
about the possible use of deadly force, if feasible. Id.Applying the Garner factors to the evidence viewed in the
light most favorable to Ms. Robinson, we conclude that she met
her summary-judgment burden to show that her son suffered a
Fourth Amendment violation. Although the use of deadly force
against Mr. Robinson initially was justified, “the level of force that
is reasonable may change during the course of a police encounter.”
Hunter, 941 F.3d at 1280. On balance, the Garner factors support
the conclusion that Officer Doyle by himself or together with Of-
ficer Heinze used excessive force after the flashbang exploded.
The first factor—threat of serious physical harm—strongly
supports that a Fourth Amendment violation occurred. It is undis-
puted that after the flashbang detonated, Mr. Robinson no longer
resisted arrest or otherwise threatened Officers Doyle or Heinze.
Indeed, the evidence indicated that Mr. Robinson was uncon-
scious, so neither officer had any cause to believe that he posed a
threat of serious physical harm. Thus, at this point, the use of
deadly force was disproportionate to the threat that Officers Doyle
and Heinze faced.
The remaining Garner factors do not help the officers. The
second factor, which looks at whether an officer needed to use
deadly force to prevent escape, cuts unambiguously against Offic-
ers Doyle and Heinze. No reasonable officers would believe they
needed to use deadly force to prevent the unconscious Mr. Robin-
son from escaping. And the third factor is largely irrelevant: neither
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24 Opinion of the Court 21-11280
Officer Doyle nor Officer Heinze warned Mr. Robinson that they
would shoot him after the flashbang exploded, but he would not
have heard a warning in any event. For these reasons, we conclude
that a reasonable jury could find that Officer Doyle by himself or
together with Officer Heinze used excessive force by shooting Mr.
Robinson after the flashbang showed that he was unconscious.7
7
Ms. Robinson alleged in her Third Amended Complaint that the defendants
stood directly above her son and fired two bullets into him after the flashbang
detonated. No reasonable jury could make such an inference based on the ev-
idence in the record. Ms. Robinson points to the gunshot residue on her son’s
shirt as evidence that he was shot at close range. But the GBI agent who tested
the shirt’s gunshot residue conceded that his analysis could not determine
where the shooter was located when the shots were fired. She next contends
that one gunshot wound in Mr. Robinson’s leg must have come from some-
one shooting from above. This argument is undercut by one of her own ex-
perts, who explained that determining bullet trajectory from entrance and exit
wounds was “all speculation” because the medical examiner did not dissect
the bullet tracks. Doc. 232 at 16. “Speculation does not create a genuine issue
of fact, instead; it creates a false issue, the demolition of which is a primary
goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005) (internal quotation marks omitted).
Ms. Robinson pled that the defendants stood directly above her son
and fired down at him after the flashbang detonated, but the evidence—
viewed in the best light for her—shows only that Officer Doyle by himself or
together with Officer Heinze shot Mr. Robinson from somewhere in the apart-
ment after the explosion. This discrepancy between the operative complaint
and the evidence does not prejudice either Officer Doyle or Officer Heinze,
however. Regardless of the location from which Mr. Robinson was shot, the
complaint included allegations that he was shot after the flashbang exploded,
so Officers Doyle and Heinze had notice of these accusations. See Miranda-
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21-11280 Opinion of the Court 25
B. Clearly Established Law Demonstrated that Shooting an
Unresponsive Mr. Robinson Was Unconstitutional.
Having concluded a jury could find that Officers Doyle and
Heinze used excessive force after the flashbang explosion, we
move to whether the two officers violated Mr. Robinson’s clearly
established rights. A right is clearly established when it is “suffi-
ciently clear that every reasonable official would have understood
that what he is doing violates that right.” Mullenix v. Luna, 577
U.S. 7, 11 (2015) (internal quotation marks omitted). “The ordinary
way of showing that a right is clearly established is by showing that
a materially similar case has already been decided.” Bradley v. Ben-
ton, 10 F.4th 1232, 1242 (11th Cir. 2021). “The rule requiring par-
ticularized case law to establish clearly the law in excessive force
cases has a narrow exception known as the obvious clarity rule.”
Glasscox v. City of Argo, 903 F.3d 1207, 1218 (11th Cir. 2018) (al-
teration adopted) (citation omitted) (internal quotation marks
omitted). “To come within the narrow exception, a plaintiff must
show that the official’s conduct was so far beyond the hazy border
between excessive and acceptable force that the official had to
know he was violating the Constitution even without caselaw on
Rivera v. Toledo-Davila, 813 F.3d 64, 73 n.5 (1st Cir. 2016) (defendant not prej-
udiced by discrepancy between allegations and the evidence because they
were within the same “universe of facts”). And “complaints can be amended
as late as trial to conform to the evidence, Fed. R. Civ. P. 15(b)(1), and there
would have been good cause to do so here.” Id.USCA11 Case: 21-11280 Date Filed: 08/30/2022 Page: 26 of 28
26 Opinion of the Court 21-11280
point.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th
Cir. 2000) (alteration adopted) (internal quotation marks omitted).
Based on these principles, we conclude that shooting an un-
conscious suspect was clearly unlawful in August 2016, when the
shooting in this case occurred. It would have been clear to any rea-
sonable officer that such conduct would constitute excessive force
in violation of the Fourth Amendment. Our decision in Hunter v.
City of Leeds is instructive.
Hunter required us to decide whether the district court
erred in denying qualified immunity to a police officer who shot a
suspect after the suspect dropped his gun and was no longer evad-
ing arrest. Hunter, 941 F.3d at 1272. In Hunter, the police officer
responded to a 911 call about a shooting. Id. at 1271. A car chase
ensued as the officer pursued the suspect to his home. Id. at 1271–
72. Once the suspect parked his car, the officer told him to raise his
hands. Id. at 1272. Instead, the suspect aimed a gun at the officer.
Id. The officer fired three shots at the suspect. Id. The suspect re-
coiled into his car and dropped his gun through the open car door.
Id. The officer then fired off a second round of gunfire consisting
of seven shots. Id.
The suspect filed an excessive-force claim against the officer.
Id. at 1273. The officer sought qualified immunity, which the dis-
trict court denied. Id. On appeal, we affirmed the district court’s
denial of qualified immunity as to the officer’s second round of
shots. Id. at 1280. After concluding that the additional seven shots
amounted to excessive force, we turned to whether the officer
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21-11280 Opinion of the Court 27
violated a right that was clearly established in 2013, when the
shooting happened. Id. at 1280–81. We held that the officer had fair
warning that his actions were unlawful because “[t]he 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 pro-
hibits that the unlawfulness of the conduct is readily apparent.’” Id.
at 1281 (alteration adopted) (quoting Lee, 284 F.3d at 1199).
Given our holding in Hunter, we conclude that it was clearly
established in 2016 that shooting an incapacitated suspect consti-
tuted excessive force in violation of the Fourth Amendment. Alt-
hough we decided Hunter in 2019, we concluded in that case that
by at least 2013 it was readily apparent that using deadly force on a
suspect who had been but was no longer a threat was unconstitu-
tionally excessive. If, in Hunter, the officer’s second round of gun-
fire was conduct that lay “so obviously at the very core of what the
Fourth Amendment prohibits,” id., we see no reason why shooting
an unconscious Mr. Robinson would not also be an obvious use of
excessive force. Therefore, we conclude that Officers Doyle and
Heinze are not entitled to qualified immunity on the shots that
were fired after the flashbang exploded.
IV. CONCLUSION
The district court correctly granted summary judgment to
Officer Hutchens because he was entitled to qualified immunity.
The district court also correctly determined that Officers Doyle and
Heinze were entitled to qualified immunity for their actions before
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28 Opinion of the Court 21-11280
the flashbang detonated. Accordingly, we affirm those portions of
the district court’s order. The district court erred, however, by
granting qualified immunity to Officers Doyle and Heinze for their
actions after the flashbang exploded. We therefore reverse the dis-
trict court’s order insofar as it granted them summary judgment on
Ms. Robinson’s claim that they employed excessive force after the
flashbang detonated. We remand for further proceedings con-
sistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.