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                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-13732
                           ________________________

                   D.C. Docket No. 1:13-cv-00920-WHA-SRW

KATHERINE THOMAS,
individually, and as the administrator of the estate of
Christopher Jerome Thomas,

                                                                 Plaintiff-Appellant,

                                         versus

DARREN MOODY,
in his individual capacity,
CITY OF DOTHAN, ALABAMA,

                                                              Defendants-Appellees.

                           ________________________

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



                                   (June 24, 2016)
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Before HULL and BLACK, Circuit Judges, and ROTHSTEIN, * District Judge.

PER CURIAM:

       In this 42 U.S.C. § 1983 action, Katherine Thomas (“the Plaintiff”),

individually and as the administrator of the estate of Christopher Thomas

(“Thomas”), appeals the district court’s grant of summary judgment on the basis of

qualified immunity in favor of Defendant Darren Moody, a Dothan, Alabama

police officer. After careful review of the record and with the benefit of oral

argument, we affirm.

                                       I.      FACTS

       Because this appeal arises from the grant of Defendant Officer Moody’s

motion for summary judgment, we recount the relevant facts in the light most

favorable to the non-moving Plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190

(11th Cir. 2002).

       On June 28, 2012, Officer Moody was training Probationary Officer Mitch

Murkerson inside of a marked police vehicle on a residential street in Dothan,

Alabama. At approximately 3:50 P.M., Thomas drove past Officer Moody in a

white Ford Explorer (“the Explorer”). Officer Moody caught a glimpse of Thomas

and mistook him for Jerome Hill, an individual who was the subject of an active

arrest warrant for domestic violence.

       *
         Honorable Barbara Jacobs Rothstein, United States District Judge for the Western
District of Washington, sitting by designation.
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      Believing the driver of the Explorer might be Hill, Officer Moody turned his

patrol vehicle around and began pursuing Thomas in order to conduct an

investigatory stop and ascertain the identity of the driver. Officer Moody activated

his siren and emergency lights, but Thomas accelerated away from Officer Moody.

      A high-speed chase through the residential streets of Dothan ensued, which

was recorded by the dashboard camera in Officer Moody’s car. The posted speed

limit on several of the residential streets was 25 miles per hour. At times, the

Explorer reached speeds of nearly 60 miles per hour.

      The dashcam video shows that Thomas made five wide or reckless turns

onto residential streets in an attempt to elude Officer Moody. The dashcam video

also shows that Thomas ran through four stop signs, including one intersection

with a flashing red light. At the intersection with the flashing red light, another car

with the right-of-way had entered the intersection but stopped abruptly to avoid a

collision with Thomas. Thomas sped through the intersection, swerving sharply.

Officer Moody called out on the police radio that he was pursuing the Explorer.

Officer Ronald Hall heard the call and joined the pursuit.

      At some point, Thomas turned sharply into a strip mall parking lot at a

dangerous speed. Continuing at a high rate of speed, Thomas drove near the

sidewalk in front of the strip mall storefronts, where pedestrians were present.

Next, Thomas turned to the right and drove directly toward a car in the parking lot,


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which was the unmarked police vehicle of Officer Hall, who by that point had

entered the parking lot. After passing Officer Hall’s car, Thomas began circling

around other parked cars in the parking lot in a figure eight pattern at a high rate of

speed. The dashcam video shows the Explorer’s tires producing smoke and black

tread marks as Thomas drove and swerved about at a high rate of speed in the

parking lot.

      Thomas’s dangerous and erratic driving in the parking lot caused several

individuals in the vicinity to fear for their safety. Philip Foster and his 16-year-old

son were inside one of the parked cars in the strip mall parking lot and feared that

Thomas would hit and injure them. Foster’s wife was standing in front of one of

the strip mall stores. She observed Thomas’s aggressive driving and feared that

her children and husband could be hurt. Another witness from across the street

who observed Thomas driving in the parking lot worried that Thomas would run

over and kill someone.

      After swerving around in the parking lot, Thomas abruptly stopped his

vehicle facing a parked car. Officer Moody stopped his car beside the driver’s side

of the Explorer. Officer Hall stopped his car beside the passenger’s side of the

Explorer. At this point, all three cars were stopped with the two police officers’

cars on each side of the Explorer and a parked car in front of the Explorer.




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       Believing that the chase was over, Officer Moody exited his car and drew

his gun. But the chase was not over. When Officer Moody exited his car, Thomas

put the Explorer in reverse gear, spun the tires, accelerated in reverse at a high rate

of speed, crossed an aisle in the parking lot, and crashed into a parked car

approximately 15 to 25 feet behind him. 1 The pictures in the record show that the

collision caused extensive damage to the passenger’s side of the parked car. At

this point, Thomas had fled from Officer Moody at high speeds through residential

streets, run through four stop signs, almost hit a car when running through a stop

sign at an intersection with a flashing red light, swerved dangerously with his tires

smoking through the parking lot with pedestrians present, and crashed into a

parked car in the parking lot while accelerating in reverse.

       Believing for a second time that the chase was over, Officer Moody moved

towards the Explorer with his gun drawn and pointed at Thomas. Officer Moody

shouted at Thomas to exit the Explorer. The Explorer was stationary for a

moment—at most, a few seconds—but Thomas did not turn off the engine or raise

his hands.2

       Seconds after exiting his car, and after Thomas crashed into the parked car,

Officer Moody opened fire, shooting Thomas five times in the side of his neck and
       1
           The parked car was empty at the time of the crash.
       2
        Some witnesses even stated that Thomas, after crashing into the parked car, tried to
place the Explorer in forward gear.


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chest. Officer Moody was standing next to the driver’s side door of the Explorer

when he began shooting Thomas. Though its engine was still running, the

Explorer was momentarily stationary when Officer Moody began shooting

Thomas. 3

       After Officer Moody shot Thomas, the Explorer accelerated forward,

crossed a busy street, and crashed through the wall of a nearby building.

                            II.    PROCEDURAL HISTORY

       On June 12, 2014, the Plaintiff filed a four-count amended complaint in

federal district court against Officer Moody and the City of Dothan, alleging

causes of action under federal and state law. The Plaintiff brought the following

claims against Officer Moody: (1) Fourth Amendment violation under 42 U.S.C.

§ 1983 (Count I); and (2) wrongful death under Alabama state law (Count II). The

Plaintiff brought the following additional claims against the City of Dothan under

Alabama state law: (1) neglectfulness, unskillfulness, or carelessness (Count III);

and (2) negligent hiring (Count IV).

       In an August 12, 2015 order, the district court granted summary judgment in

favor of Officer Moody with respect to the Plaintiff’s § 1983 claim on the basis of

       3
         According to Officer Moody, he was in front of the Explorer and Thomas put the
Explorer in forward gear and began driving toward him. Officer Moody testified that, fearing for
his safety, he stepped slightly to his right to avoid the Explorer and, as the Explorer approached,
fired four shots at Thomas. But reviewing the record in the light most favorable to the Plaintiff,
Officer Moody (1) was on the driver’s side of the Explorer when he opened fire on Thomas, and
(2) having just crashed into the parked car, the Explorer was momentarily stationary when he
opened fire on Thomas.
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qualified immunity. The district court declined to exercise supplemental

jurisdiction over the remaining state law claims and dismissed them without

prejudice.

                               III.   DISCUSSION

      We review de novo a district court’s ruling on a summary judgment motion

based on qualified immunity. McCullough v. Antolini, 559 F.3d 1201, 1204 (11th

Cir. 2009). Summary judgment is proper “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.” Fed. R. Civ. P. 56(a). “[G]enuine disputes of facts are those in

which the evidence is such that a reasonable jury could return a verdict for the non-

movant.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009)

(quotation marks omitted). “For factual issues to be considered genuine, they must

have a real basis in the record.” Id. (quotation marks omitted). “[M]ere

conclusions and unsupported factual allegations are legally insufficient to defeat a

summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.

2005).

      Section 1983 supplies a remedy to a plaintiff “who can prove that a person

acting under color of state law committed an act that deprived [him] of some right,

privilege, or immunity protected by the Constitution or laws of the United States.”

Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). For government


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officials sued in their individual capacities under § 1983, “[q]ualified immunity

offers complete protection . . . if [the officials’] conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010)

(quotation marks omitted).

      “The initial inquiry in a qualified immunity case is whether the public

official proves ‘that he was acting within the scope of his discretionary authority

when the allegedly wrongful acts occurred.’” Id. at 1254 n.19 (quoting Lee, 284

F.3d at 1194). If so, the court must ascertain: (1) “whether the plaintiff’s

allegations, if true, establish a constitutional violation,” and (2) “whether the right

violated was ‘clearly established.’” Id. at 1254. This analysis may be done in the

order most appropriate for the case. Id.

      In assessing the clearly-established prong, we ask if it would be clear to a

reasonable officer that his conduct was unlawful in the situation he

confronted. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002). Thus, a

plaintiff must show either (1) that a materially similar case has already been

decided, giving notice to the police; (2) that a broader, clearly established principle

should control the novel facts in this situation; or (3) that this case fits within the

exception of conduct which so obviously violates the Constitution that prior case

law is unnecessary. Keating v. City of Miami, 598 F.3d 753, 766 (11th Cir. 2010).


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The “salient question” is whether the state of the law at the time of the incident

gave Officer Moody “fair warning” that his conduct was unlawful. See Hope v.

Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002).

      With respect to the constitutional violation prong, the U.S. Supreme Court’s

decisions in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985) and Graham

v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989), “establish that claims of

excessive force are to be judged under the Fourth Amendment’s ‘objective

reasonableness’ standard.” Brosseau v. Haugen, 543 U.S. 194, 197, 125 S. Ct.

596, 568 (2004) (quotation marks omitted). In Garner, the Supreme Court

explained that it is unreasonable for an officer to “seize an unarmed, nondangerous

suspect by shooting him dead,” but that “[w]here the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer

or to others, it is not constitutionally unreasonable to prevent escape by using

deadly force.” 471 U.S. at 11, 105 S. Ct. at 1701.

      This Court “must engage in an objective inquiry to determine the

reasonableness of an officer’s actions in an excessive force case: the question is

whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent or

motivation.” Perez v. Suszczynski, 809 F.3d 1213, 1219 (11th Cir. 2016)

(quotation marks omitted). The Supreme Court has repeatedly cautioned that


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“[t]he 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, 490 U.S. at 396-97, 109 S. Ct. at

1872.

        An officer may use deadly force without violating the constitution when a

car that is being used as a deadly weapon threatens his life or the life of another or

presents a risk of serious bodily injury. See McCullough, 559 F.3d at 1207-08.

For example, in Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002), the decedent

led police on a high-speed chase, swerving and nearly hitting other motorists. Id.

at 1277. The pursuit ended in a cul-de-sac, where police cars blockaded the

decedent’s car on three sides. Id. at 1277-78. Within “a moment of [the

decedent’s] car stopping (at most, a very few seconds),” an officer fired two shots

through the decedent’s front windshield. Id. at 1278. At the “same time” shots

were fired, the decedent’s car began moving forward. Id. “The whole event at the

cul-de-sac was a matter of seconds.” Id.

        This Court concluded that the use of deadly force in Pace was reasonable

because the decedent “would have appeared to reasonable police officers to have

been gravely dangerous” at the time of the shooting, based on his dangerous




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driving as well as his failure to heed police warnings. Id. at 1281-82. This Court

noted:

         Plaintiff has identified no case demonstrating a clearly established
         rule prohibiting police officers from using deadly force in
         circumstances like those in this case: a case, among other things,
         where the fleeing suspect appeared to be dangerous by virtue of his
         hazardous driving during the long, nighttime car chase and where the
         suspect remained in his automobile with the engine running, even
         when almost surrounded by officers and where—IF the chase had
         ended at all—it had ended (at most) a very few seconds before the
         officers fired and, even then, the suspect's car started driving away
         again, causing more shots to be fired.

Id. at 1283.

         The Plaintiff argues that the officers in Pace did not shoot the decedent until

after the decedent began moving his vehicle towards the officers. That is not

correct. In Pace, the officers opened fire at the “same time” that the decedent’s

vehicle began moving forward, not after. Id. at 1278.

         In Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005), the decedent

refused to surrender to police and instead drove towards a free-standing officer at

approximately one to two miles per hour. Id. at 1254. The officer was only a few

feet away from the decedent’s car, and there was a parked car directly behind him.

Id. To avoid being pinned, the officer shot through the windshield and killed the

decedent. Id. This Court affirmed the grant of qualified immunity and stated,

“[e]ven if in hindsight the facts show that [the officer] perhaps could have escaped

unharmed, we conclude that a reasonable officer could have perceived that [the
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decedent] was using the [car] as a deadly weapon,” and, therefore, “[the officer]

had probable cause to believe that [the decedent] posed a threat of serious physical

harm.” Id. at 1256.

      In McCullough v. Antolini, 559 F.3d 1201 (11th Cir. 2009), the decedent led

the police on a high-speed chase before pulling his truck into a shopping center

parking lot. Id. at 1203. When the decedent’s truck came to a stop, a police officer

exited his car, drew his weapon, and ordered the decedent to put his hands up. Id.

The driver did not show his hands or respond to the officer’s command. Id.

Instead, the decedent revved the engine of his truck, at which point the officer shot

the decedent. Id. This court concluded that the officer was entitled to qualified

immunity because “[the decedent] used his vehicle in a dangerous and aggressive

manner which provided the officers with probable cause to believe that [the

decedent], while driving his truck, posed a threat of serious physical harm or death

to the officers, or other passersby.” Id. at 1208.

      On this particular record, the district court did not err by granting qualified

immunity to Officer Moody. As an initial matter, we reject the Plaintiff’s claim

that there are any genuine disputes of material fact. The district court resolved in

favor of the Plaintiff the ambiguity concerning whether Thomas was stationary or

driving forward when Officer Moody shot him, and whether Moody was standing

to the side of or in front of Thomas’s car. The Plaintiff also claims that Thomas


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attempted to surrender, but she relies entirely on an unsupported, conclusory

statement not based on personal knowledge. Because mere conclusions and

unsupported factual allegations are insufficient to create genuine issues of material

fact, the district court did not err in concluding that there was no evidence that—

much less a genuine dispute of material fact about whether—Thomas attempted to

surrender. See Ellis, 432 F.3d at 1326-27.

      Under the facts and circumstances of this case, which includes video

evidence, we cannot say that Officer Moody violated Thomas’s’ constitutional

rights by using objectively unreasonable force. As in Pace, Robinson, and

McCullough, Thomas’s aggressive and dangerous driving threatened serious harm

to other citizens and the officers as he drove through four stop signs, almost hitting

one car, and as he drove through the parking lot. That threat escalated when

Thomas rammed into a parked car as the officers closed in. Indeed, the Plaintiff

admits that, even though the Explorer was stationary for a moment (as most, a few

seconds), Thomas never turned off the engine, never attempted to exit the

Explorer, and never raised his hands.

      The Plaintiff contends that Officer Moody’s use of deadly force was

unreasonable because Officer Moody believed that the chase was over after

Thomas rammed into the parked car, and, at the moment he opened fire on

Thomas, the chase was, in fact, over. This argument is unavailing. Officer Moody


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testified that he first thought the chase was over when Thomas stopped in front of a

parked car and Officers Moody and Hall stopped their patrol cars on the sides of

the Explorer. But Thomas then put the car into reverse gear, accelerated, and hit

another parked car with the rear end of the Explorer. After the crash, Officer

Moody again thought that the chase was over and yelled at Thomas to exit the

Explorer. Thomas did not turn off the engine, raise his hands, or do anything else

to surrender. Indeed, when Officer Moody opened fire, the Explorer’s engine was

still running, and the Explorer then sped forward.

      In any event, we must engage in an objective inquiry to determine the

reasonableness of an officer’s actions in an excessive force case, and we consider

whether Officer Moody’s actions were objectively reasonable without regard to his

underlying intent, motivation, or beliefs. See Perez, 809 F.3d at 1219; see also

Brown v. City of Huntsville, 608 F.3d 724, 738 (11th Cir. 2010) (“We judge use of

force solely on an objective basis, and we do not consider an officer’s subjective

belief.”) In doing so, we must evaluate Officer Moody’s conduct in light of all

facts and circumstances that confronted him. Id.

      Given this standard, we cannot say that Officer Moody’s actions were

objectively unreasonable under the circumstances he faced. The Plaintiff’s focus

on the few seconds before Officer Moody opened fire ignores the critical events

leading up to that moment: Thomas’s failure to pull over, the high-speed chase


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through residential streets, Thomas’s narrow avoidance of a collision, Thomas’s

failure to stop in the parking lot next to a busy street, and Thomas’s continued

erratic driving in that parking lot that caused bystanders and officers to fear for

their own safety and for the safety of others, including children, all evidencing

Thomas’s repeated unwillingness to surrender despite the danger he posed to the

public. Under the circumstances, it was objectively reasonable to believe that the

chase was not over even after Thomas rammed into the parked car. Indeed, it had

previously appeared that the chase was over when the police boxed in the Explorer,

but Thomas proved that assumption wrong. Because it was objectively reasonable

for a police officer to believe that Thomas continued to pose a dangerous threat to

the public even after he crashed into the parked car, deadly force was warranted.

      Even if we accept that in hindsight the chase was technically “over” after

Thomas crashed into the parked car, Officer Moody’s use of deadly force in the

seconds following the crash was still objectively reasonable. This Court has held

that deadly force is warranted “where the fleeing suspect appeared to be dangerous

by virtue of his hazardous driving . . . and where the suspect remained in his

automobile with the engine running, even when almost surrounded by officers and

where . . . the chase had ended . . . a very few seconds before the officers fired.”




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Pace, 283 F.3d at 1283 (emphasis added). 4 That is precisely what happened in this

case. Thomas appeared to be dangerous by virtue of his hazardous driving, he

remained in the Explorer with the engine running, even when almost surrounded

by officers, and he had crashed the Explorer only a few seconds before Officer

Moody fired. As in Pace, deadly force was not objectively unreasonable under

these circumstances. See id.

       Even if the Plaintiff did establish that a federal constitutional violation

occurred, which she did not, that federal law was not clearly established at the time

that Thomas used his car as a dangerous weapon. We cannot say that Officer

Moody had fair warning that his conduct was unlawful in the dangerous situation

he confronted. Vinyard, 311 F.3d at 1350; Hope, 536 U.S. at 741, 122 S. Ct. at

2516. If anything, the prevailing law in this Circuit at the time of Thomas’s death

affirmatively provided that Officer Moody’s actions were objectively reasonable.

See Pace, 283 F.3d at 1283.

       In sum, Officer Moody’s use of deadly force did not violate Thomas’s

constitutional rights. Moreover, on June 28, 2012, it was not clearly established


       4
         On this record, this case is unlike Morton v. Kirkwood, 707 F.3d 1276 (11th Cir. 2013),
“where the plaintiff did not use or did not threaten to use his car as a weapon,” id. at 1283, and
also unlike Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), where the decedent’s escape “did
not present an immediate threat of serious harm to [the deputy] or others on the road,” in part,
because the decedent’s lane of traffic was clear and he had made no aggressive moves to change
lanes before being shot. Id. at 1230. Further, Morton could not have provided Moody with
notice of a clearly established rule, since Morton was not decided until 2013, after the 2012
events at issue in this case.
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that Officer Moody was prohibited from using deadly force against Thomas under

the circumstances of this case. Because Moody violated no constitutional right, let

alone a clearly established one, we conclude that he is entitled to qualified

immunity.

      AFFIRMED.




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