              Case: 13-13506      Date Filed: 12/31/2014   Page: 1 of 13



                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                    No. 13-13506
                              ________________________

                       D.C. Docket No. 9:12-cv-80406-KLR

CARLOS MONTERO,
as Personal Representative of the
Estate of Richard Montero, deceased,

                                                    Plaintiff - Appellee,

versus

RAMESH NANDLAL,
in his individual capacity,

                                                    Defendant - Appellant.


                              ________________________

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

                                 (December 31, 2014)
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Before TJOFLAT, JULIE CARNES, and GILMAN, * Circuit Judges.

PER CURIAM:

       Deputy Ramesh Nandlal of the Palm Beach County Sheriff’s Office appeals

the district court’s denial of his motion for summary judgment on the basis of

qualified immunity. Nandlal shot and killed Richard Montero (hereinafter

“Montero”) during a confrontation that occurred on April 9, 2010. Thereafter,

Montero’s brother, plaintiff Carlos Montero (“Plaintiff”), sued Nandlal in the

latter’s individual capacity under 42 U.S.C. § 1983, alleging that Nandlal used

excessive force in violation of the Fourth Amendment. Viewing the evidence in

the light most favorable to Plaintiff, as we are required to do, we conclude that no

reasonable officer would have used deadly force against Montero under the

circumstances and that clearly established law gave Nandlal fair notice that his

actions violated the Fourth Amendment. We therefore AFFIRM the district

court’s denial of summary judgment.

                                 I. BACKGROUND

       On April 9, 2010, Nandlal and fellow Deputy Victor Blackman responded to

an abandoned-vehicle call. Upon their arrival at the scene, the deputies found

Montero asleep behind the wheel of his SUV, which was in the middle of the road

*
  Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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with the engine running. Montero smelled of alcohol, but the deputies did not cite

him for DUI or administer a sobriety test. Instead, after persuading Montero to

exit the SUV, the deputies contacted his friend, Nancy Schiff, to come and get

him. Schiff arrived at the scene shortly thereafter, and the deputies directed

Montero to get into her car.

      At some point while he was sitting in Schiff’s car, Montero learned that his

SUV was going to be towed. He then swung his legs out of the car and began

arguing with the deputies. After Montero ignored several orders to get back into

the car, Blackman decided to arrest him for disorderly intoxication. Montero

either voluntarily exited or was pulled from Schiff’s car, and Blackman secured

the bracelet of a handcuff to one of his wrists. A scuffle ensued when Montero

pulled away from Blackman in an effort to avoid having his other wrist

handcuffed.

      The struggle continued for several minutes, during which time the deputies

used their tasers on Montero to no effect. Eventually, the two deputies were able

to bring Montero to the ground. The three men ultimately reached a position

where Montero was on his back, in a position between lying and sitting down,

with Deputy Blackman standing over him and Deputy Nandlal seated and facing

him. While the three were in this position, Blackman heard Nandlal say, “I’m

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going to shoot.” Blackman quickly moved out of the way, to the side of Montero.

Without giving any other warnings, Nandlal immediately fired four shots at

Montero, who later died from the gunshot wounds.

      It is undisputed that Montero was unarmed during the confrontation, and

that the deputies had no reason to believe that he had any kind of weapon.

Although Montero had a loose handcuff attached to one of his arms, he never tried

to use the cuff as a weapon. Deputy Blackman testified that Montero did not

reach for the deputy’s gun during the struggle, and that he likewise did not see

Montero reach for Deputy Nandlal’s gun. Nancy Schiff, who had a clear view,

confirmed that Montero did not reach for, or ever have access to, either deputy’s

gun. Deputy Blackman further testified that he had leverage and was standing

over Montero when Nandlal announced that he was going to shoot. Schiff stated

that Montero was immobilized and lying spread eagle, with his arms and legs

pinned down, just prior to being shot.

      Plaintiff sued Nandlal on behalf of Montero’s estate, alleging that the

shooting violated Montero's Fourth Amendment rights. Nandlal moved for

summary judgment on the ground of qualified immunity. The district court

denied the motion, finding that questions of fact concerning the shooting

precluded summary judgment. Nandlal now appeals.

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                                 I. DISCUSSION

A.    Jurisdiction

      As a preliminary matter, Plaintiff argues that this Court lacks jurisdiction to

consider Nandlal’s appeal. To the contrary, we have interlocutory jurisdiction to

review a denial of qualified immunity to the extent that the denial raises an issue

of law. Plumhoff v. Rickard, ___U.S. ___, 134 S. Ct. 2012, 2019 (2014). Our

jurisdiction encompasses situations where the district court “simply rules that

material issues of fact precluded summary judgment” on the ground of qualified

immunity, as occurred here. Hadley v. Gutierrez, 526 F.3d 1324, 1328 (11th Cir.

2008) (internal quotation marks omitted). Because this appeal raises the legal

issue of whether Nandlal’s alleged conduct violated a clearly established federal

right, we have interlocutory jurisdiction over it. See Plumhoff, ___ U.S. at ___,

134 S. Ct. at 2019; see also Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.

1996) (noting the Court’s interlocutory jurisdiction “in qualified immunity cases

where the denial is based even in part on a disputed issue of law”).

B.    Standard of Review

      We review de novo a district court’s disposition of a summary judgment

motion that is based on qualified immunity and apply the same legal standards as

the district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). In

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conducting our review, we resolve any factual disputes in favor of the plaintiff and

then decide whether the defendant is entitled to qualified immunity under that

version of the facts.   Id.; see also Tolan v. Cotton, ___ U.S. ___, 134 S. Ct. 1861,

1866 (2014) (“Our qualified-immunity cases illustrate the importance of drawing

inferences in favor of the nonmovant . . . .”). We acknowledge that the “‘facts, as

accepted at the summary judgment stage of the proceedings, may not be the actual

facts of the case.’” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009)

(quoting Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002), and Priester v.

City of Riviera Beach, 208 F.3d 919, 925, n.3 (11th Cir. 2000)). Nevertheless, we

view the facts from the plaintiff’s perspective because the determinative issue on

appeal is “not which facts the parties might be able to prove,” but whether “certain

given facts” demonstrate a violation of clearly established law. Crenshaw v.

Lister, 556 F.3d 1283, 1289 (11th Cir. 2009).

C.    Analysis

      Qualified immunity completely “protects government officials performing

discretionary functions from suits in their individual capacities unless their

conduct violates ‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994

(11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508

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(2002)). To obtain qualified immunity, a public official must first show that he

was engaged in a discretionary duty when the allegedly wrongful act occurred.

Id. at 995. Plaintiff does not dispute that Deputy Nandlal was acting within the

scope of his discretionary authority when he shot Montero. The burden thus

shifts to Plaintiff to show that qualified immunity is not appropriate. Id.

      Plaintiff must satisfy a two-part test to meet his burden. McCullough, 559

F.3d at 1205. First, he must show that Nandlal’s conduct violated a constitutional

right. Id. Assuming a violation occurred, Plaintiff must also show that the right

was clearly established at the time of the incident. Id. Viewing the facts in the

light most favorable to Plaintiff, we conclude that both prongs are satisfied here.

      1.       Constitutional Violation

           Plaintiff’s deadly-force claim is analyzed under the objective

reasonableness standard of the Fourth Amendment. Plumhoff, ___ U.S. at ___,

134 S. Ct. at 2020 (citing Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865

(1989), and Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985)). The

reasonableness standard “requires a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. (internal citations omitted).

Reasonableness in this context depends on all the circumstances relevant to an

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officer’s decision to use force and the amount of force used.   Jean–Baptiste v.

Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). We view the circumstances “from

the perspective ‘of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.’” Plumhoff, ___ U.S. at ___, 134 S. Ct. at 2020 (quoting

Graham, 490 U.S. at 396, 109 S. Ct. 1865). And we allow for the fact that

officers are often required 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.” Id. (internal quotation marks omitted).

      We have identified several circumstances that are relevant to the

reasonableness of an officer’s decision to use deadly force on a criminal suspect,

including “the seriousness of the crime, whether the suspect poses an immediate

danger to the officer or others, whether the suspect resisted or attempted to evade

arrest, and the feasibility of providing a warning before employing deadly force.”

Jean-Baptiste, 627 F.3d at 821. We also have observed that an officer may

constitutionally use deadly force when he:

      (1) “has probable cause to believe that the suspect poses a threat of serious
      physical harm, either to the officer or to others” or “that he has committed a
      crime involving the infliction or threatened infliction of serious physical
      harm”; (2) reasonably believes that the use of deadly force was necessary to
      prevent escape; and (3) has given some warning about the possible use of
      deadly force, if feasible.



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McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329-30

(11th Cir. 2003)).

      Accepting Plaintiff’s account of the events leading up to the shooting, we

have little difficulty concluding that Nandlal violated Montero’s Fourth

Amendment right to be free from the use of excessive force. Montero was asleep

at the wheel of his SUV when the deputies first encountered him. Although they

suspected that Montero had been drinking, the deputies did not consider the

situation serious enough to administer a field sobriety test and did not intend to

arrest Montero for any crime. When Montero later became agitated because the

deputies indicated their intention to tow his SUV, Blackman decided to arrest him

for misdemeanor disorderly intoxication. There is no indication that Montero’s

purported crime was serious or that he posed a risk to anyone.

      Montero did initially resist being arrested, and he arguably posed some

threat to Nandlal and Blackman once the struggle began. However, Nandlal had

no reason to believe that Montero was armed, and we must assume, taking the

facts in the light most favorable to Plaintiff, that he was not reaching for either

deputy’s gun at any time during the confrontation. Crucially, there is evidence to

support Plaintiff’s assertion that, at the time Nandlal decided to shoot Montero, the

latter was on his back, subdued and immobilized, with Deputy Blackman standing

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over him. Montero’s resistance had therefore ended, and any physical threat he

presented had been neutralized when the shooting occurred. Cf. Plumhoff, ___

U.S. at ___, 134 S. Ct. at 2021 (the threat created by a suspect’s high-speed chase

did not end when the car temporarily came to a stop because “less than three

seconds later [the suspect] resumed maneuvering his car”). Thus, seemingly

having ended at the time of the shooting, Montero’s earlier resistance does not,

taken by itself, legitimize Deputy Nandlal’s later decision to shoot him. See

Jean-Baptiste, 627 F.3d at 821 (listing resistance to arrest as one of the factors that

is relevant to the objective-reasonableness inquiry) (emphasis added); cf. Garner,

471 U.S. at 11, 105 S. Ct. 1694 (“It is not better that all felony suspects die than

that they escape.”).

      2.     Clearly Established Law

      Nandlal is nonetheless entitled to qualified immunity unless Plaintiff can

show that Montero’s Fourth Amendment rights were “clearly established” at the

time of the shooting. Plumhoff, ___ U.S. at ___, 134 S. Ct. at 2023. To be

clearly established, the contours of a right must be “sufficiently definite that any

reasonable official in the defendant’s shoes would have understood that he was

violating it.” Id. “‘[T]he salient question . . . is whether the state of the law’ at

the time of an incident provided ‘fair warning’ to the defendant[] that [his] alleged

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[conduct] was unconstitutional.’” Tolan, ___ U.S at ___, 134 S. Ct. at 1866

(quoting Hope, 536 U.S. at 741, 122 S. Ct. 2508).

      Fair warning is most commonly provided by materially similar precedent

from the Supreme Court, this Court, or the highest state court in which the case

has arisen. Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). However, a

judicial precedent with identical facts is not essential for the law to be clearly

established. Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).

Authoritative judicial decisions may “establish broad principles of law” that are

clearly applicable to the conduct at issue. Griffin Indus., Inc. v. Irvin, 496 F.3d

1189, 1209 (11th Cir. 2007). And occasionally, it may be obvious from “explicit

statutory or constitutional statements” that conduct is unconstitutional. Id. at

1208-09. In all of these circumstances, qualified immunity will be denied if the

preexisting law “make[s] it obvious that the defendant’s acts violated the

plaintiff’s rights in the specific set of circumstances at issue.” Youmans, 626 F.3d

at 563.

      We set forth the factors relevant to deciding whether an officer’s use of

deadly force was reasonable in several cases that pre-date April 9, 2010. See

Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (noting the

severity of the crime, the threat posed by the suspect to the safety of the officer or

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others, and whether the suspect was resisting or attempting to evade arrest by

flight as relevant factors); Vaughn, 343 F.3d at 1329-30 (considering whether a

warning was given, if feasible). None of those factors indicate that it would be

reasonable to shoot–four times, in rapid succession and without any warning–an

unarmed suspect who is subdued, immobilized, and lying on his back with another

officer standing over him.

      We also observed, in several cases pre-dating April 9, 2010, that an officer

may constitutionally use deadly force against a suspect whom the officer

reasonably believes (1) “poses a threat of serious physical harm to the officer or

others” or (2) has “committed a crime involving the infliction or threatened

infliction of serious physical harm.” Vaughan, 343 F.3d at 1329-30; see also

Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005); Mercado, 407 F.3d

at 1157. Based on the assumed facts, these cases likewise make it obvious that

Nandlal violated Montero’s Fourth Amendment rights by using deadly force

against him. The only crime that Nandlal suspected Montero of committing was

misdemeanor disorderly intoxication, which did not involve or threaten the

infliction of physical harm. Nor was there any basis upon which Nandlal could

otherwise reasonably perceive Montero, who was unarmed, immobilized, and

lying beneath Deputy Blackman, as posing a threat of serious physical harm. Cf.

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Long v. Slaton, 508 F.3d 576, 583 (11th Cir. 2007) (recognizing the threat posed

by a psychotic man who had stolen and was driving away in a police cruiser);

Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003) (concluding that a

suspect who had just thrown a knife at an officer, and who was close to a source of

weapons and not under police control, was reasonably perceived as a sufficient

threat to warrant the use of deadly force).

      In short, Nandlal had “fair warning” on April 9, 2010 that his conduct

violated the Fourth Amendment. Of course, a jury might well find that Nandlal

reasonably perceived Montero to be a serious threat because he was not in fact

subdued at the time of the shooting or because at some point during the struggle he

had reached for Nandlal’s gun belt. But assuming Plaintiff’s version of the facts

to be correct, as we must do in reviewing a defendant’s motion for summary

judgment, existing case law provided sufficient warning to alert Nandlal to the fact

that shooting Montero, under these circumstances, would violate the latter’s

Fourth Amendment rights. Accordingly, qualified immunity for Deputy Nandlal

is not warranted on these facts.

                                   III. CONCLUSION

      For all of the above reasons, we AFFIRM the district court’s order denying

qualified immunity to defendant Nandlal.

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