               Case: 15-14482     Date Filed: 09/02/2016   Page: 1 of 6


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-14482
                            ________________________

                       D.C. Docket No. 1:14-cv-00349-WS-B



REED COLLAR,
parent of G.C., deceased minor,
BONNIE COLLAR,
parent of G.C., deceased minor,

                                                                Plaintiffs-Appellants,

                                         versus

TREVIS AUSTIN,
in his individual and official capacities,

                                                                Defendant-Appellee.

                            ________________________

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

                                 (September 2, 2016)
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Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH, ∗ District
Judge.

PER CURIAM:

       After the tragic death of Gil Collar at the University of South Alabama, his

parents Reed and Bonnie Collar filed a lawsuit against Trevis Austin, a campus

police officer employed by the University, who fired the shot that killed their son.

Asserting a claim under 42 U.S.C. § 1983, they alleged that the shooting

constituted excessive force in violation of the Fourth and Fourteenth Amendments.

They also asserted a claim for wrongful death under Alabama law. After

discovery, the United States District Court for the Southern District of Alabama

entered summary judgment in favor of Austin. This is the Collars’ appeal from

that judgment.

       After careful consideration of the briefs and the relevant parts of the record,

and with the benefit of oral argument that assisted us in making our decision, we

affirm the district court’s judgment based on its well-reasoned order, Collar v.

Austin, No. 14-0349-WS-B, 2015 WL 5444347 (S.D. Ala. Sept. 15, 2015), subject

to one reservation, and we also offer two additional observations. Our one

reservation is about the facts for summary judgment purposes. The district court

appears to have resolved one genuine factual dispute in favor of Officer Austin,


       ∗
        Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District
of Alabama, sitting by designation.


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who was the movant. The court accepted as fact Austin’s deposition testimony

that he did not know that his fellow officer, Bernard Parrish, was nearby at the time

of the shooting. In his deposition testimony, however, Officer Parrish testified that

he was in a nearby parking lot when he heard the radio call, that he approached

Austin and Gil Collar from the police station’s parking lot, and that he yelled at

Collar to get down before Austin fired the shot. Under the evidence viewed in the

light most favorable to the plaintiffs, a jury could conclude that seconds before

Austin fired he knew that Parrish was nearby.

      Even so, there is no evidence that Officer Parrish was close enough to

Austin to offer non-lethal assistance as Gil Collar was quickly advancing on

Austin, who continued to back up in an unsuccessful attempt to avoid Collar’s

rapid approach. Under those circumstances, a reasonable officer could have

believed that Collar posed an immediate threat of death or serious injury,

notwithstanding the fact another officer was somewhere behind that officer. See

Brown v. City of Huntsville, 608 F.3d 724, 733 (11th Cir. 2010) (“A law

enforcement officer is entitled to qualified immunity if an objectively reasonable

officer in the same situation could have believed that the force used was not

excessive.”) (quotation marks omitted); Vinyard v. Wilson, 311 F.3d 1340, 1346

(11th Cir. 2002) (“An officer will be entitled to qualified immunity if his actions

were objectively reasonable, that is if an objectively reasonable officer in the same



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situation could have believed that the force used was not excessive.”); Montoute v.

Carr, 114 F.3d 181, 184 (11th Cir. 1997) (“[T]he question is whether [the plaintiff]

has convinced us that at the time [the officer] shot him no officer reasonably could

have believed that [the plaintiff] . . . posed a risk of serious physical injury . . . .”).

       We add one additional fact to the district court’s discussion of the Collars’

argument that Officer Austin could have used pepper spray instead of lethal force

to avoid any danger to himself. The district court’s order acknowledges that

Austin tried to unholster his pepper spray but abandoned the effort as Gil Collar

quickly approached him. Although the order does not mention it, the record

contains as an exhibit photographs of Austin with his duty belt on. The

photographs show that Austin’s pepper spray was carried in a holster on his right-

hand side, the same side as his firearm holster. As a result, in order to use his

pepper spray, Austin would have had to holster his firearm with his right hand, and

then open the holster holding the pepper spray, and then remove the pepper spray

and position it in his hands to spray it, and then aim it at Collar and spray it, all in a

few seconds as Austin was quickly moving backwards in an unsuccessful attempt

to avoid the rapidly approaching Collar. In those circumstances, a reasonable

officer could have concluded that there was not time to attempt to stop the charge

with pepper spray.




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      The other observation we add is that the death of Gil Collar is

unquestionably tragic. It is yet another example of the bizarre behavior that drugs

can produce and the terrible toll that they exact. We also realize the sincerity of

the parents’ belief that their son’s death could have been avoided, that it was

unnecessary to shoot him. With the benefit of hindsight and having had much time

to contemplate the matter, we may agree with them that the shooting could have

been avoided. Officer Austin, however, did not have time for contemplation. Four

seconds after he came out of the police station in the middle of the night to

investigate the loud sounds that he had heard, Gil Collar confronted him and was

acting bizarrely. From that moment until Austin had to make a decision about

whether he was under the threat of serious physical injury or death, only about

twenty-five seconds elapsed. Austin had spent virtually all of that time backing up

in an unsuccessful attempt to maintain a safe distance between himself and Collar.

      As both the Supreme Court and this Court have explained, “The calculus of

reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments — in circumstances that are tense,

uncertain, and rapidly evolving — about the amount of force that is necessary in a

particular situation.” Graham v. Connor, 490 U.S. 386, 396–97, 109 S. Ct. 1865,

1872 (1989). For that reason, “[i]n making an excessive force inquiry, we are not

to view the matter as judges from the comfort and safety of our chambers, fearful



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of nothing more threatening than the occasional paper cut as we read a cold record

accounting of what turned out to be the facts.” Crosby v. Monroe Cty., 394 F.3d

1328, 1333–34 (11th Cir. 2004). Instead, “[w]e must see the situation through the

eyes of the officer on the scene who is hampered by incomplete information and

forced to make a split-second decision between action and inaction in

circumstances where inaction could prove fatal.” Id. at 1334; see also Kesinger ex

rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004)

(explaining that an officer’s use of force “must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight”);

Garrett v. Athens–Clarke Cty., 378 F.3d 1274, 1279 (11th Cir. 2004) (same).

Judging the matter from the perspective of a reasonable officer on the scene,

Officer Austin is entitled to qualified immunity.

      AFFIRMED.




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