                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 06-12140                ELEVENTH CIRCUIT
                                                             AUGUST 9, 2006
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D.C. Docket No. 04-01928-CV-CC-1

TABITHA A. JONES,
ALLISON JONES, JR., et al.,

                                                      Plaintiffs-Appellants,

                                   versus

CITY OF ATLANTA,
MARILYN T. STONE,
OFFICER CHARLES E. FRYE,

                                                      Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                              (August 9, 2006)

Before TJOFLAT, MARCUS and COX, Circuit Judges.

PER CURIAM:
      The Estate of Allison Jones, Tabitha Jones, and Allison Jones’s five children

(collectively, “the Joneses”) sued the City of Atlanta and City of Atlanta police

officers Marilyn T. Stone and Charles E. Frye, in their official and individual

capacities. The Joneses assert claims pursuant to 42 U.S.C. § 1983 for use of

excessive force in violation of Jones’s federal constitutional rights and for state torts

arising out of the same use of force. The district court granted all Defendants

summary judgment on the federal claims and declined to exercise jurisdiction over

the pendent state law claims. As to the § 1983 claim against the officers in their

individual capacities, we reverse. As to the § 1983 claims against the City of Atlanta

and the officers in their official capacities, we affirm. We vacate the dismissal of the

state law claims to enable the district court to reconsider the question of whether to

exercise jurisdiction over the state law claims.

                  I. FACTUAL & PROCEDURAL HISTORY

      The undisputed facts are these. On July 2, 2002, at approximately 10:45 a.m.,

Officers Stone and Frye were returning from their lunch break. They were in their

police vehicle, stopped at a red light at Harrison Road and Virginia Avenue. They

were outside the City of Atlanta police jurisdiction but had radioed that they were

returning to service.




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      Officers Stone and Frye observed a white Lincoln Navigator traveling at a high

rate of speed, eastbound in the westbound lane of Virginia Avenue, passing the

officers’ vehicle, running the red light, and attempting to turn right to enter I-85.

However, because the Navigator was traveling at such a high rate of speed, it was

unable to make the turn onto the I-85 entrance ramp and instead crossed over the

traffic island, crashed into the guard rail, and came to a stop. Officers Stone and Frye,

knowing that they were outside of their own police jurisdiction, proceeded to the

scene of the accident and radioed Communications asking for another police

jurisdiction. When they arrived at the accident scene, Officer Stone parked the police

vehicle behind the Navigator. The officers then exited the police vehicle and

approached the Navigator, which had been driven by Allison Jones. Officer Frye

drew his weapon. The officers ordered Jones to exit the vehicle. Jones did not exit

the vehicle, and the officers fired their weapons into the vehicle. Two of the shots hit

Jones; one was fatal.

      The facts of the interaction between the officers and Jones are disputed. The

officers maintain that Jones acknowledged the officers’ commands to exit his vehicle

but refused to do so. The officers and some eye witnesses say that Jones attempted

to run over the officers with the Navigator, first by backing over them then (after

turning the vehicle) by hitting them with the front of the vehicle. And, the officers

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contend that they fired in self defense, attempting to stop Jones from using the

moving vehicle to cause them great bodily harm. The Plaintiffs contend that the

officers were not in danger of bodily harm and that Jones moved the vehicle to escape

the officers’ gunfire, contentions that are supported by several eye witnesses’

statements that the officers shot into the vehicle before Jones moved it from the

accident site.

      The Joneses sued Officers Stone and Frye, in both their individual and official

capacities, and the City of Atlanta for violation of Jones’s federal constitutional rights

and torts arising under state law. The district court granted all the Defendants

summary judgment on the federal claims, holding that: (1) no constitutional violation

had occurred because the officers acted reasonably in self defense; (2) the suit against

the officers in their individual capacities is barred by qualified immunity; and (3) the

City of Atlanta was not liable for the officers’ conduct. The Joneses appeal.

      II. ISSUES ON APPEAL & CONTENTIONS OF THE PARTIES

      The Joneses argue that the district court erred by finding that there was no

disputed material issue of fact regarding the reasonableness of the officers’ actions

in firing on the Navigator. In support of this argument, they cite statements of several

witnesses who say they saw the officers fire into the vehicle before the vehicle moved

in the officers’ direction. The Joneses also argue that, because the incident occurred

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outside of the City of Atlanta police jurisdiction, the officers are not entitled to

qualified immunity. Finally, they contend that the City of Atlanta is liable for the

actions of the officers because it condoned their actions.

      Defendants argue that the district court did not err in granting summary

judgment because, as a matter of law, the officers acted reasonably when they shot

into the vehicle in self defense. Therefore, they reason, the officers did not violate

Jones’s constitutional rights, and neither the officers nor the City of Atlanta can be

liable to the Joneses. The individual Defendants also argue that, even if the officers

violated Jones’s constitutional rights, they are immune from suit in their individual

capacities pursuant to the doctrine of qualified immunity.

                         III. STANDARD OF REVIEW

      We review de novo a grant of summary judgment, construing all facts and

making all reasonable inferences in the light most favorable to the non-moving party.

See Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir.

2004) (citing Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996)).

                                IV. DISCUSSION

                            A. Constitutional Violation

      Before deciding whether Officers Frye and Stone are entitled to qualified

immunity for their alleged violation of Jones’s constitutional rights, we must

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determine whether there is an issue of fact as to whether any such violation occurred.

In other words, we ask, “‘[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated a constitutional

right?’” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Saucier v.

Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156 (2001)). Only if a constitutional right

would have been violated under the plaintiff’s version of the facts, must a court

proceed with the qualified immunity analysis. Id.

      Officers Frye and Stone maintain that they shot Jones in self defense. They

say, and some eye witnesses agree, that Jones used his vehicle as a deadly weapon

when he drove it directly at the officers, with the intention of hitting them. Officers

Frye and Stone maintain that they did not fire on Jones’s vehicle until he tried to run

over them. A reasonable jury could believe them. But, the court’s obligation at this

stage of the proceedings is to view all of the evidence in the light most favorable to

the Plaintiffs. The complaint alleges that Officers Frye and Stone shot Jones without

any provocation. (R.1-1 ¶¶ 12-14.) And, at least some witnesses support the

Plaintiffs’ allegations. Witnesses Hayat, Penn, T. Jacobs, and E. Jacobs gave

statements to police that they had observed Officers Stone and Frye firing their

weapons at Jones’s vehicle before the vehicle moved from the initial accident site.

See R.1-24 at 20-1-3 through 20-3-3 (Hayat); id. at 10-1-1 & 37-5-34 (Penn); id. at

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37-6-34 through 37-7-34 (T. Jacobs); id. at 16-1-1 (E. Jacobs). A reasonable jury

could also believe them.

      Firing on a stationary vehicle containing an accident victim who was neither

threatening the officers with harm nor a suspect in a crime (other than possible

misdemeanor traffic violations) is an excessive use of force and a violation of a

victim’s right to be free from unreasonable seizure. See Vaughan v. Cox, 343 F.3d

1323, 1329 (11th Cir. 2003) (finding that shooting into vehicle moving at high speed

would be an unreasonable use of force violating the Fourth Amendment rights of a

victim harmed by the shooting if the use of the vehicle did not present an immediate

threat of serious harm at the time the officer fired, or if the use of deadly force was

not necessary to prevent escape of a suspected felon, or if it were feasible for officers

to warn of their intention to use deadly force before firing). On the other hand, courts

have recognized that “it is constitutionally permissible for an officer to use deadly

force when ‘the officer has probable cause to believe that the suspect poses a threat

of serious physical harm, either to the officer or to others.’” Carr v. Tatangelo, 338

F.3d 1259, 1268 (11th Cir. 2003) (quoting Tennessee v. Garner, 471 U.S. 1, 11, 105

S. Ct. 1694, 1701 (1985)) (other citations omitted). If Officers Frye and Stone were

acting in self defense, in an attempt to avoid the harm of a driver intent on running

over them with his vehicle, the force used was not unreasonable and did not violate

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Jones’s constitutional rights. See Pace v. Capobianco, 283 F.3d 1275, 1282 (11th

Cir. 2002) (shooting victim had used an automobile so as to give reasonable

policemen probable cause to believe that it had become a deadly weapon with which

he was armed).

       Therefore, a genuine issue of material fact exists as to whether the officers

violated Jones’s Fourth Amendment rights. Because there is a factual dispute as to

whether the officers acted in self defense, summary judgment on the Fourth

Amendment claim was improper.

                                B. Qualified Immunity

       Ordinarily, “[q]ualified immunity offers ‘complete protection for government

officials sued in their individual capacities as long as their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person would have

known.’ The purpose of this immunity is to allow government officials to carry out

their discretionary duties without the fear of personal liability or harassing litigation.”

Lee, 284 F.3d at 1194 (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.

2001)) (additional quotations omitted). However, “[i]n order to receive qualified

immunity, the public official must first prove that he was acting within the scope of

his discretionary authority when the allegedly wrongful acts occurred. If the

defendant was not acting within his discretionary authority, he is ineligible for the

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benefit of qualified immunity.” Id. (internal quotations and citations omitted). “A

government official acts within her discretionary authority if the actions were (1)

undertaken pursuant to the performance of [her] duties and (2) within the scope of

[her] authority.” Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995) (internal

quotations omitted).

      In this case, Officers Stone and Frye have not proven that they were acting

within the scope of their discretionary authority when they interacted with Jones. The

officers do not dispute that they were outside of their police jurisdiction when they

allegedly violated Jones’s constitutional rights. And, they have presented nothing to

support a finding that their interaction with Jones was undertaken in performance of

their official duties. While they suggest, in a footnote in their appellate brief, that

Georgia law authorizes police officers to arrest those committing crimes in their

presence even if the crime is committed outside of the officers’ police jurisdiction,

Officers Stone and Frye did not contend in the district court nor on appeal that they

were arresting Jones. Instead, they have maintained that they intended to render him

aid. And, Dr. Richard Clark, the City of Atlanta Police Department’s head of

Planning and Research, testified that, in such circumstances, City of Atlanta police

officers have only the same authority as an ordinary citizen when they are outside the

territorial jurisdiction of the City of Atlanta. (R.2-36 at 50.) Thus, Officers Stone and

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Frye are not entitled to summary judgment grounded upon qualified immunity for

their actions during the interaction with Jones. See Lenz, 51 F.3d at 1547 (holding

that guardian ad litem who acted outside the scope of her authority was not entitled

to qualified immunity).

                             C. City of Atlanta Liability

      We have recognized that “[f]or liability purposes, a suit against a public official

in his official capacity is considered a suit against the local governmental entity he

represents.” Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1210 n.3 (11th Cir.

1993). Therefore, the Joneses’ claims against Officers Stone and Frye in their official

capacities are claims against the City of Atlanta.

      The district court held that the City of Atlanta could not be liable to the Joneses

because no constitutional violation occurred. As stated above, the existence of a

constitutional violation is a jury question. But, we affirm the district court’s grant of

summary judgment on the § 1983 claims against the City of Atlanta on another basis.

      A local government is liable to a § 1983 plaintiff for actions of the

government’s agents when a constitutional injury was inflicted in execution of the

government’s policy or custom. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694, 98 S. Ct. 2018, 2037 (1978). Here, the Joneses assert that the City of Atlanta has

informally adopted a policy condoning the use of deadly force (including firing of

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weapons at vehicles) in all situations, including those in which the use of weapons

is clearly unlawful. Appellants’ Opening Brief at 33. But the Joneses cite no record

evidence in support of this assertion. Therefore, they cannot maintain their § 1983

claims against the City of Atlanta. The City of Atlanta was due summary judgment.

                                D. State Law Claims

      The district court declined to exercise jurisdiction over the Joneses’ state law

claims because it had disposed of all the claims over which it had original jurisdiction

on summary judgment. See 28 U.S.C. § 1367(c). Because we reverse the grant of

summary judgment as to the § 1983 claims against Officers Stone and Frye in their

individual capacities, we also vacate dismissal of the state law claims and instruct the

district court to reconsider the question of whether to exercise supplemental

jurisdiction pursuant to 28 U.S.C. § 1367 over the Joneses’ state law claims.

      AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART;

AND REMANDED.




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