                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________          FILED
                                                     U.S. COURT OF APPEALS
                                  No. 09-16162         ELEVENTH CIRCUIT
                                                       SEPTEMBER 1, 2010
                              Non-Argument Calendar
                                                            JOHN LEY
                            ________________________
                                                             CLERK

                   D. C. Docket No. 08-00066-CV-ORL-35-DAB

ROBERT G. SWOFFORD, JR.,
an individual,
SHARON L. SWOFFORD,
an individual, his wife,

                                                              Plaintiffs-Appellees,

                                      versus

DONALD ESLINGER,

                                                                       Defendant,

WILLIAM MORRIS, JR.,
RONALD REMUS,
in their individual capacity,


                                                           Defendants-Appellants.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________
                               (September 1, 2010)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Deputies William Morris and Ronald Remus of the Sheriff’s Office of

Seminole County, Florida, appeal the denial of qualified immunity against Robert

Swofford’s complaint of excessive force. The district court concluded that genuine

issues of material fact barred summary judgment, and we affirm.

      The Swoffords filed a complaint against the deputies and Sheriff Donald

Eslinger about injuries from an encounter between Robert Swofford and the

deputies. Swofford, who encountered the deputies while armed and investigating a

possible trespass on his land, alleged that the deputies used excessive force to

disarm him. The deputies moved to dismiss the complaint based on qualified

immunity, which the district court denied.

      We review de novo the denial of summary judgment based on qualified

immunity. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007).

We construe all facts and make all reasonable inferences in the light most

favorable to the nonmoving party. Id.

      The district court did not err when it ruled that Morris and Remus were not

entitled to qualified immunity. The record reveals material issues of fact about



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whether the deputies identified themselves to Swofford, the position of Swofford’s

gun, the need for Morris and Remus to shoot Swofford, and whether Remus should

have intervened to prevent Morris’s use of force. Morris and Remus testified that

they identified themselves and warned Swofford repeatedly, but the radio

transmission from the scene did not record the deputies speaking before they fired

their guns, and that recording is consistent with Swofford’s version of events. The

deputies also gave inconsistent statements about the position of Swofford’s gun

during the encounter. The deputies acknowledged that Swofford, a white male, did

not match the description of the Hispanic suspects for whom the deputies were

searching and that Swofford was likely the owner of the property. A reasonable

jury could find that Morris and Remus violated Swofford’s clearly established

constitutional rights.

      The denial of qualified immunity is AFFIRMED.




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