                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             NOV 15, 2007
                             No. 07-13068
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK


                  D. C. Docket No. 05-00264-CV-CAP-1

LORETTA LUKE,

                                                     Plaintiff-Appellant,

                                  versus

ALEXANDER BROWN, JR.,
J. CLAY, #1662, et al.,

                                                     Defendants,

DEKALB COUNTY, GA,

                                                     Defendants-Appellees.



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


                           (November 15, 2007)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:

      This is an appeal from the district court’s grant of summary judgment in

favor of DeKalb County, Georgia, in an action brought under 42 U.S.C. § 1983 by

Loretta Luke, the mother of Stanley Bates, who was shot and killed by Officer

Alexander Brown during a confrontation between Bates, Luke, and Officers

Brown and Clay. Officer Brown shot Bates three times. The first two shots fired

by Brown were fired in rapid succession using a technique known as “double-

tapping” or shooting in control pairs. Luke contended in the district court that

DeKalb County trains its officers to use the double-tap method and that, as a

matter of policy, the double-tap method is unconstitutional.

      After an investigation, an internal review board determined that Brown was

not justified in firing the third shot. The board, therefore, found that there was a

violation of the DeKalb County Police Department policy and permitted Officer

Brown to resign from the police department in lieu of being terminated.

      The DeKalb County Police Department’s policy under attack in this case is

that deadly force can only be used when an officer or another person is being

threatened with deadly force, and that the threat is imminent.

      Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary

judgment when all “pleadings, depositions, answers to interrogatories, and

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admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and . . . the moving parties are entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      After reviewing the record, and reading the parties’ briefs, we agree with the

district court’s finding that the policy in question is not unconstitutional regarding

the use of force in dealing with suspects armed with weapons at close range. See

Tennessee v. Garner, 471 U.S. 1,105 S. Ct. 1694 (1985). Although it is

unfortunate that Officer Brown departed from the county’s policy, that departure

does not mean that the policy itself was unconstitutional or that it was the moving

force behind the alleged constitutional violation. Accordingly, we affirm the

district court’s grant of summary judgment in favor of the county.

      AFFIRMED.




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