             Case: 18-11695     Date Filed: 08/14/2019   Page: 1 of 12


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11695
                          ________________________

                   D.C. Docket No. 3:16-cv-00855-CDL-DAB



MARY LEE DAVIS,
as administrator of the Estate of Fletcher Ray Stewart, deceased,

                                                  Plaintiff - Appellant,

versus

BRYAN EDWARDS,
JIMMY ABBETT,
Sheriff of Tallapoosa County, Alabama,
DAVID McMICHAEL,
Chief Deputy,
WILLIAM J. HOUGH,
Training Officer,
TALLAPOOSA COUNTY, ALABAMA, et al.,

                                                  Defendants - Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________

                                (August 14, 2019)
                Case: 18-11695       Date Filed: 08/14/2019       Page: 2 of 12


Before ROSENBAUM, BRANCH and DUBINA, Circuit Judges.

PER CURIAM:

       This is an appeal of the district court’s order granting summary judgment in

favor of Deputy Bryan Edwards of the Tallapoosa County, Alabama, Sheriff’s

Office and Officers Rico Hardnett and Christopher Fenn of the City of Dadeville

Police Department (collectively, “the officers”).1

       The district court referred the summary judgment motion to a magistrate

judge pursuant to 28 U.S.C. § 636 et seq. The magistrate judge recommended that

Hardnett and Fenn’s motion be granted but that Edwards’s motion be denied.

Edwards objected to the denial of his motion for summary judgment, and the

district court reviewed his objections de novo. The district court then adopted the

magistrate judge’s recommendation that Hardnett and Fenn’s motion for summary

judgment be granted but rejected the magistrate judge’s recommendation that

Edwards’s motion for summary judgment be denied. The district court then

entered summary judgment in favor of all three defendants as to all claims of

Plaintiff Mary Lee Davis, as administrator of the Estate of Fletcher Ray Stewart,

deceased. Davis then perfected this appeal.



       1
         The amended complaint included additional defendants, including Tallapoosa County,
the City of Dadeville, and other individual defendants. The district court dismissed those
defendants, and no party appealed that order. Thus, the three officers listed above were the only
remaining defendants when the case proceeded to summary judgment.
                                                2
             Case: 18-11695     Date Filed: 08/14/2019   Page: 3 of 12




                          I.     BACKGROUND FACTS

      This is a tragic case surrounding events which occurred near Dadeville,

Alabama, on February 11, 2015, during which the officers were involved in the

shooting death of local citizen Fletcher Ray Stewart (“Stewart”). Stewart was a

46-year-old lifelong resident of rural Tallapoosa County, Alabama. Stewart

suffered from mild mental retardation and was known by both the residents of

Dadeville and the members of local law enforcement.

      On February 11, 2015, Stewart’s nephew, Benny Welch, called 911 to report

his uncle was wandering on the road “rasing [sic] all kind of Cain, and he’s got a

pistol in his pocket. . . . He showed it – you know, pulled it out when he walked

by.” (R. Doc. 109-9, p. 3.) The 911 operator dispatched Deputy Edwards, telling

Edwards that Stewart was “walking up and down [Booger Hollow Road] hollering,

[and] he has got a pistol that he is waving around.” (R. Doc. 109-10, p. 2.)

Edwards responded to the call and requested any available backup. Officers

Hardnett and Fenn also responded to the call.

      Edwards had encountered Stewart numerous times when responding to

incidents in which Stewart was involved. During these encounters, Edwards had

been able to diffuse any problem by merely talking to Stewart, or by giving him

snacks or small change. However, on occasion, Edwards also had responded to

                                         3
              Case: 18-11695    Date Filed: 08/14/2019    Page: 4 of 12


calls alleging violence by Stewart. In responding to these calls, Edwards had seen

Stewart attack and threaten others, including police officers, with weapons such as

a taser, bicycle chain, and large rock. (R. Doc. 164–1, p. 18–25.) In addition, the

record shows that Edwards responded to a call that Stewart assaulted his own

mother. (Id. at p. 18–20.) Edwards also knew that Stewart had at various prior

times been in possession of a knife and brass knuckles. (Id. at p. 23, 25.) On this

fatal day, as Edwards drove toward Stewart in response to the 911 call, Stewart ran

into the woods. Edwards chased Stewart and commanded him to stop, which

eventually he did. At that point, the other two officers had arrived at the scene

with their guns drawn. Edwards shouted commands to Stewart, alternating

between ordering him to keep his hands up and asking him where he had placed

the gun. Instead of following either of Edwards’s commands, Stewart moved his

hands toward his back waistband, and Edwards opened fire. Two rounds struck

Stewart, killing him. Importantly, the entire encounter was captured by Edwards’s

body camera, the footage of which is included as part of the record. See Def. Exh.

129, at 5. The parties, not surprisingly, dispute whether Edwards fired before or

after Stewart removed his hand from his back waistband, apparently drawing his

weapon.

      We viewed the video several times, in slow motion, and we are unable to

determine, conclusively, whether Edwards opened fire before or after Stewart


                                          4
                Case: 18-11695       Date Filed: 08/14/2019       Page: 5 of 12


appeared to draw his weapon. What the video does show conclusively is that

Edwards opens fire within a second of his bodycam capturing a frame that depicts

Stewart holding a pistol-shaped object in his right hand (R. Doc. 109–17, p. 2.)

Hardnett saw a pistol fly from Stewart’s hands after the shooting started, but

neither he nor Fenn saw a gun in Stewart’s hands before the shooting. After the

shooting, the officers discovered that Stewart had been holding a BB gun that

resembled a real pistol. For purposes of the officers’ motion for summary

judgment, the district court assumed that Edwards did not see a gun before he fired

his weapon the first time.

                                          II.    ISSUES

       Davis alleges that the officers violated Stewart’s Fourth Amendment rights

by (1) conducting an unlawful investigatory stop under Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868 (1968); (2) unlawfully seizing Stewart prior to the shooting and at

the time of the shooting; and (3) using excessive force against Stewart when

Edwards shot him. The question before us is whether the district court properly

granted qualified immunity to the officers on the pre-shooting seizure claims and

on the excessive use of force claim. 2




       2
         In her brief, Davis also argues that the district court improperly construed evidence and
inferences in the officers’ favor when deciding the summary judgment motion. Because there is
nothing in the record to support that argument, we summarily reject it without further discussion.
                                                5
              Case: 18-11695     Date Filed: 08/14/2019    Page: 6 of 12




                          III.   STANDARD OF REVIEW

      We review de novo the district court’s grant of summary judgment. Smith v.

LePage, 834 F.3d 1285, 1291 (11th Cir. 2016). “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.” Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quoting Moton v.

Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)). If that standard is met, the burden

shifts to the nonmoving party to “come forward with specific facts showing that

there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (quotation marks omitted).

      To prevent summary judgment, a factual dispute must be both material and

genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505,

2510 (1986). A fact is “material” if it “might affect the outcome” of the case.

Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (quotation

marks omitted). And to raise a “genuine” dispute, the nonmoving party must point

to enough evidence that “a reasonable jury could return a verdict for [her].” Id.

(quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510).

      When considering the record on summary judgment “the evidence of the

nonmovant is to be believed, and all justifiable inferences are to be drawn in [her]


                                          6
              Case: 18-11695      Date Filed: 08/14/2019    Page: 7 of 12


favor.” Tolan v. Cotton, 572 U.S. 650, 651, 134 S. Ct. 1861, 1863 (2014). But in

cases where a videotape in evidence “obviously contradicts [the nonmovant’s]

version of the facts, we accept the video’s depiction instead of [the nonmovant’s]

account,” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010),

and “view[] the facts in the light depicted by the videotape,” Scott v. Harris, 550

U. S. 372, 381, 127 S. Ct. 1769, 1776 (2007).

                                  IV.    DISCUSSION

      Qualified immunity protects officers engaged in discretionary functions

from civil liability only if the officers’ actions do not “violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Here, no

one disputes that the officers were exercising discretionary authority at the time of

the alleged constitutional violations; thus, qualified immunity could attach to their

actions. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005)

(defendant officers were apprehending suicidal subject and were clearly engaged in

a discretionary act); Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (no

dispute that officer was engaged in discretionary duty while arresting plaintiff).

Therefore, to prevail on her claim, the plaintiff must establish that the officers are

not entitled to qualified immunity because the facts alleged demonstrate a violation




                                           7
              Case: 18-11695     Date Filed: 08/14/2019    Page: 8 of 12


of Stewart’s constitutional right that was clearly established at the time of

Edwards’s conduct. See Mercado, 407 F.3d at 1156.

      We conduct a two-part inquiry to assess whether the plaintiff met this

burden. First, we consider whether, taken in the light most favorable to the

plaintiff, the facts alleged show the officers’ conduct violated a constitutional right.

See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Then, “[i]f a

constitutional right would have been violated under the plaintiff’s version of the

facts, the court must then determine whether the right was clearly established.” Id.

(quotation marks omitted).

      A. Pre-Shooting Seizure Claims

      “[L]aw enforcement officers may seize a suspect for a brief, investigatory

Terry stop where (1) the officers have a reasonable suspicion that the suspect was

involved in, or is about to be involved in, criminal activity, and (2) the stop ‘was

reasonably related in scope to the circumstances which justified the interference in

the first place.’” United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011)

(quoting Terry, 392 U.S. at 19–20, 88 S. Ct. at 1878–79). The reasonable

suspicion standard “is a less demanding standard than probable cause and requires

a showing considerably less than preponderance of the evidence.” Id. (quoting

Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 676 (2000)). Nonetheless,

“the Fourth Amendment requires at least a minimal level of objective justification


                                           8
             Case: 18-11695     Date Filed: 08/14/2019   Page: 9 of 12


for making [a] stop.” Id. (quoting Wardlow, 528 U.S. at 123, 120 S. Ct. at 676).

We consider the totality of the circumstances when determining whether

reasonable suspicion existed and note that “[d]efensive behavior toward police is a

relevant factor in this inquiry.” Id. at 1186–87. When an officer asserts the

defense of qualified immunity to a claim of an unconstitutional investigatory stop,

“the issue is not whether reasonable suspicion existed in fact, but whether the

officer had ‘arguable’ reasonable suspicion to support an investigatory stop.”

Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). Thus, the relevant inquiry

is whether the officers’ seizure of Stewart prior to the shooting was supported by

“arguable reasonable suspicion.” Id. We agree with the district court that it was.

      The record demonstrates that Deputy Edwards knew that Stewart engaged in

aberrant behavior and that he knew Stewart was waving a gun on a public

roadway. When Stewart saw Edwards approaching, Stewart ran into the woods on

to someone else’s property. Under the totality of the circumstances, Edwards had

an arguable reasonable basis to suspect Stewart was engaged in criminal activity

and posed a threat to any individuals in the vicinity. These circumstances

authorized him to stop and question Stewart. Therefore, we agree with the district

court’s finding that Edwards is entitled to qualified immunity on Davis’s pre-

shooting seizure claims. Additionally, we conclude that Officers Hardnett and

Fenn, who were simply providing backup for Deputy Edwards and were not


                                          9
                Case: 18-11695   Date Filed: 08/14/2019   Page: 10 of 12


personally involved in the initial stop, are also entitled to qualified immunity on

these claims.

      B. Excessive Force Claim

      This claim presents a much closer question. The district court assumed for

purposes of its summary judgment order that Edwards did not actually see Stewart

holding a gun prior to discharging his weapon. This fact alone, however, is not

dispositive of the claim. The record in this case demonstrates that Edwards knew

Stewart to be mentally unbalanced, was reported to be armed, and was behaving in

an erratic and potentially dangerous manner. The record also clearly demonstrates

that upon seeing Edwards, Stewart fled. When Stewart stopped running, Edwards

did not see a gun. Thus, Edwards reasonably could have concluded that the gun

was concealed on Stewart’s person.

      The record also demonstrates that when Edwards ordered Stewart to show

his hands and turn around, Stewart did not comply. Further, the videotape shows

that when Edwards asked Stewart where the pistol was, Stewart did not respond;

instead, Stewart reached his right hand behind his back into his waistband. At that

point, Edwards pointed his weapon at Stewart and ordered him to show his hands.

Rather than comply with this order, Stewart kept his right hand behind his back

and refused to show his hands. On this record, where Edwards had significant

personal knowledge of Stewart’s history with violence, as well as of his mental


                                          10
             Case: 18-11695      Date Filed: 08/14/2019    Page: 11 of 12


unpredictability, we agree with the district court’s finding that at this point,

whether Edwards saw the gun or not, he had probable cause to believe that Stewart

posed a danger to himself and to the officers on the scene.

      The relevant inquiry is whether it would have been clear to a reasonable

officer that shooting Stewart under these circumstances would have been a

violation of his Fourth Amendment right. Edwards was in a precarious position

that necessitated an immediate decision. He was not required to wait any longer

before using deadly force. See Shaw v. City of Selma, 884 F.3d 1093, 1100 (11th

Cir. 2018) (explaining that under clearly established law, when a suspect does not

comply with an officer’s commands, the officer is not required to wait until the

moment a suspect uses deadly force to stop the suspect); Jean-Baptiste v.

Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“[T]he law does not require officers

in a tense and dangerous situation to wait until the moment a suspect uses a deadly

weapon to act to stop the suspect.” (quoting Long v. Slaton, 508 F.3d 576, 581

(11th Cir. 2007))); Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009)

(“[W]here orders to drop [a] weapon have gone unheeded, an officer is not

required to wait until an armed and dangerous felon has drawn a bead on the

officer or others before using deadly force.” (quotation marks omitted)).

      Notwithstanding the tragic nature of the shooting, we conclude that it would

not have been clear to a reasonable officer that the shooting was unreasonable


                                           11
             Case: 18-11695     Date Filed: 08/14/2019   Page: 12 of 12


under the circumstances. Edwards had to act quickly to subdue an unstable and

potentially dangerous suspect. We do not view his actions with “the 20/20 vision

of hindsight.” Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (quotation

marks omitted). Thus, because we conclude from the record that Edwards’s

conduct did not violate Stewart’s clearly established constitutional rights, Edwards

is entitled to qualified immunity on plaintiff’s Fourth Amendment excessive force

claim. Moreover, Hardnett and Fenn, who issued no commands and fired no shots,

are likewise entitled to qualified immunity on this claim.

                                V.    CONCLUSION

      This is indeed a tragic case, not only for the deceased and his family, but

also for Deputy Edwards and the other officers involved. Nevertheless, based on

the record, particularly the bodycam video, and based on the law of qualified

immunity, we affirm the district court’s grant of summary judgment to the officers.

      AFFIRMED.




                                         12
