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                                                                  [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 15-11632
                            ________________________

                        D.C. Docket No. 1:12-cv-00740-AT



ESTELLE SMITH,
as surviving spouse of Dirk Smith, et al.

                                                                Plaintiffs-Appellees,
                                                                  Cross-Appellants,

versus

RICHARD L. LEPAGE, JR.,
individually and in his official capacity as a
Dekalb County Police Officer, et al.,

                                                            Defendants-Appellants,
                                                                  Cross-Appellees.

                            ________________________

                   Appeals from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (August 25, 2016)
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Before MARTIN and JORDAN, Circuit Judges, and COOGLER, ∗ District Judge.

MARTIN, Circuit Judge:

       This case results from a March 2010 encounter between DeKalb County

police officers and Dirk Smith at his DeKalb County home. The officers

ultimately shot and killed Mr. Smith, and this suit for damages was brought by his

surviving wife and children. On the day he was killed, Mr. Smith broke into his

own house because he had forgotten his keys when returning from vacation. The

babysitter called the DeKalb County Police Department, and responding officers

entered the Smith home without a warrant. When the officers found Mr. Smith, he

was holding a kitchen knife that he refused to put down, so they tasered him.

According to the record here, Mr. Smith dropped the knife, ran into his bathroom,

and refused to come out. When he eventually did come out, the officers tasered

and then fatally shot him. Mr. Smith’s family filed suit under 42 U.S.C. § 1983

and under Georgia law against the county and the police chief, as well as

individual officers (collectively, “the officers”).1

       The officers moved for summary judgment, arguing that they are immune

from suit. The District Court agreed with the officers as to some of the claims

against them, but ruled that the claims related to the shooting must be decided by a
       ∗
       Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
       1
         The claims against the county and the police chief were dismissed without prejudice and
are not up on appeal.
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jury. Specifically, the court granted summary judgment to the officers on the

Smith family’s claims that: (1) the officers illegally entered the Smith home;

(2) the officers used excessive force by tasing Mr. Smith; and (3) Sergeant Vincent

Gamble was liable as a supervisor for the second tasering and the shooting of Mr.

Smith. The court denied summary judgment on Mrs. Smith’s claims that Officers

Ings and LePage used excessive force by fatally shooting Mr. Smith, ruling that the

shooting claims must be decided by a jury. Both parties appealed. After careful

consideration and with the benefit of oral argument, we affirm.

                                         I.

      In March 2010, Mr. Smith and his wife, Estelle Smith, went on vacation.

They invited a family friend to stay at their home in Lithonia, Georgia, and babysit

their two young children, Kasib and Kahrisma. During the vacation, Mr. and Mrs.

Smith had an argument that prompted Mr. Smith to return home early. However,

he forgot his keys. Mrs. Smith spoke with her husband while he was traveling, and

they agreed he should seek counseling. Mrs. Smith then called the babysitter and

instructed him not to let Mr. Smith into the home until Mr. Smith sought

counseling.

      When Mr. Smith returned home, the babysitter told him what Mrs. Smith

had said and did not let him in. Mr. Smith then walked around to the back of the

house, where there was a sliding glass door on the ground floor. He started

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banging on the door in an attempt to break it. When the babysitter saw this, he

walked out the front door, leaving Mr. Smith’s two children alone in the house.

      Mr. Smith eventually broke the back door by throwing a large rock through

the glass. The babysitter did not see the door shatter, but heard it. Kasib, Mr.

Smith’s nine-year-old son, witnessed the door breaking. He then saw his father

take a kitchen knife upstairs to jimmy open two bedroom doors that had been

locked during the vacation.

      Meanwhile, the babysitter was standing outside the Smith home. He called

Mrs. Smith and told her what was happening, and she instructed him to call the

police. The babysitter called the DeKalb County Police Department and told them

several things: (1) that Mr. Smith broke into the house; (2) that Mr. Smith was not

supposed to be in the house; (3) that the children were still inside; and (4) that the

children were alone in the house when Mr. Smith started trying to break in.

      Officers Paul Reynolds and Charles Ings arrived about fifteen minutes later.

The babysitter was on the phone with Mrs. Smith when the officers arrived, and he

handed the phone to Officer Reynolds. Mrs. Smith said her husband was stressed

out and needed somebody to talk to. After the phone call, the officers walked

around to the broken back door. They did not have a warrant.

      The officers entered the Smith home with their guns drawn and announced

themselves. Mr. Smith said he was upstairs and asked them to “hold on.” When

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Officer Reynolds saw Mr. Smith standing at the top of the stairs, Mr. Smith was

holding the kitchen knife down beside his body.

       The officers ordered Mr. Smith to drop the knife and come downstairs, but

he did not. Instead, Mr. Smith said that he did not trust the police, he was in his

own home, and he would put the knife down only if they put their guns down. Mr.

Smith continued to move back and forth from the top of the stairs to the middle

landing, ignoring the officers’ commands to drop the knife. This continued for two

to three minutes.

       Eventually, Officer Ings fired his taser at Mr. Smith. Mr. Smith screamed,

fell down, and then ran into his bathroom. 2 Kasib, who was watching from his

room at the top of the stairs, testified that his father dropped the kitchen knife when

he was tasered. Mrs. Smith in turn testified that Kasib told her a police officer then

picked the knife up from where it fell.

       After the first tasing, the officers took Kasib and Kahrisma outside to wait

with the babysitter. Officers Reynolds and Ings informed dispatch that Mr. Smith

was “barricaded” inside his bathroom. While he remained barricaded in the

bathroom, more officers arrived on the scene and spoke with Mr. Smith.

Specifically, Officers Teryl Clements, Richard LePage, and Phillip Lewis joined


       2
        The taser barbs may not have completely connected with Mr. Smith’s body, because he
was wearing heavy clothing at the time. This may explain why the taser did not incapacitate
him.
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Officers Reynolds and Ings outside the bathroom, and they all had their guns or

tasers drawn. Officer Clements tried to build rapport with Mr. Smith in order to

convince him to come out. Mr. Smith tentatively opened and closed the bathroom

door several times. He said he did not trust the police and would come out only if

they lowered their weapons. Several of the officers said they saw that Mr. Smith

still had the knife.

       Sergeant Gamble was the last to arrive before the shooting, and he took over

negotiating with Mr. Smith. According to Officer Reynolds, Sgt. Gamble said that

he “didn’t have all day,” the situation “needed to come to a resolution,” and Mr.

Smith should “think about his kids.” Eventually, Officer LePage kicked the

bathroom door down. Officer LePage and Sgt. Gamble said they saw Mr. Smith

still holding the kitchen knife. Sgt. Gamble ordered that Mr. Smith be tased.

Officer Clements fired his taser at Mr. Smith, but again it failed to incapacitate

him. Mr. Smith briefly retreated into a closet inside the bathroom.

       Finally, Mr. Smith left the bathroom, heading toward the hallway that was

the only exit from the area. According to the officers, he charged out with the

kitchen knife raised and slashing. Officer Ings shot Mr. Smith once in the chest,

and Officer LePage shot him twice in the neck and head. Mr. Smith collapsed and

died from his injuries soon after. Sgt. Gamble says he removed the kitchen knife




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from Mr. Smith’s hand. The record contains a picture of a kitchen knife on the

floor near Mr. Smith’s body, though it is by his foot, not his hand.

                                                 II.

       We review de novo a district court’s ruling on summary judgment. Perez v.

Suszczynski, 809 F.3d 1213, 1216 (11th Cir. 2016). Summary judgment is

appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ.

P. 56(a). “[T]he judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,

2511 (1986). A genuine factual issue is one that “properly can be resolved only by

a finder of fact because [it] may reasonably be resolved in favor of either party.”

Id. at 250, 106 S. Ct. at 2511.

       To determine whether qualified immunity applies, we conduct a two-step

inquiry: (1) do the facts alleged, construed in the light most favorable to the

plaintiffs, establish that a constitutional violation occurred; and (2) was the

violated constitutional right clearly established. 3 Perez, 809 F.3d at 1218. Under

either step, “courts may not resolve genuine disputes of fact in favor of the party

seeking summary judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). A

       3
          There is a threshold question of whether the officers were acting in a discretionary
capacity. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). With the exception of
the state-law supervisory liability claim against Sgt. Gamble, the plaintiffs do not contest that the
officers were acting in a discretionary capacity.
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right may be clearly established by an existing decision of the Supreme Court, this

Court, or the state’s highest court. Valderrama v. Rousseau, 780 F.3d 1108, 1112

(11th Cir. 2015). For a right to be clearly established, “there need not be a case on

all fours, with materially identical facts”; rather, there can be “notable factual

distinctions” between the precedent and the case before the court. Holloman ex

rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (quotations

omitted). Officials need only have “reasonable warning” that their conduct

violated constitutional rights. Id. (quotation omitted).

                                           III.

A.    Jurisdiction

      At the outset, we must decide whether to exercise pendent appellate

jurisdiction over the plaintiffs’ claims in their cross-appeal: (1) that the officers

illegally entered the Smith home; (2) that the officers used excessive force by

deploying their tasers; and (3) that Sergeant Vincent Gamble was liable as a

supervisor for the second tasering and the shooting of Mr. Smith. It is undisputed

that this Court has jurisdiction over the officers’ appeal from the denial of qualified

and official immunity on the shooting claims. See Cummings v. DeKalb Cty., 24

F.3d 1349, 1352 (11th Cir. 1994).

      An appeal from the denial of qualified immunity may implicate this Court’s

discretionary pendent appellate jurisdiction to review otherwise non-appealable

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matters. See Hudson v. Hall, 231 F.3d 1289, 1293–94 (11th Cir. 2000). Pendent

appellate jurisdiction is proper if the non-appealable matters are “inextricably

intertwined with an appealable decision or if review of the former decision is

necessary to ensure meaningful review of the latter.” Jackson v. Humphrey, 776

F.3d 1232, 1239 (11th Cir. 2015) (quotation omitted) (alteration adopted). Matters

may be sufficiently intertwined where they “implicate[] the same facts and the

same law.” Id. For example, this Court has exercised pendent appellate

jurisdiction where a “totality of the circumstances” analysis would have required

us to consider the legality of a traffic stop in order to decide the appealable issue of

whether the plaintiffs’ later consent to search was tainted. See Hudson, 231 F.3d at

1293–94 & n.4.

      We choose to exercise pendent appellate jurisdiction over the plaintiffs’

claims in their cross-appeal. First, like the traffic stop in Hudson, the legality of

the officers’ entry to the Smith home is intertwined with our resolution of the

appealable claims. In reviewing the totality of the circumstances surrounding the

shooting, we consider whether the officers lawfully seized Mr. Smith in the first

place. See id.; see also Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir.

2008) (per curiam) (noting that, before turning to an excessive force claim, this

Court considers whether the officers were entitled to arrest or detain the suspect).

Second, the legality of the officers’ use of their tasers is intertwined with the

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appealable claims, because it involves essentially “the same facts and the same

law.” Jackson, 776 F.3d at 1239. Finally, Sgt. Gamble’s actions as a supervisor

are intertwined with the appealable claims because the facts are essentially the

same and the plaintiffs claim that Sgt. Gamble was responsible for the second

tasing and the shooting. In the interest of judicial economy, we will consider all

the claims on appeal. See Hudson, 231 F.3d at 1294.

B.    Illegal Entry Claim

      First, the plaintiffs argue that the officers illegally entered the Smith home,

and that the District Court erred by entering summary judgment for the officers on

this claim. The Fourth Amendment protects against warrantless searches and

seizures in the home, which are presumptively unreasonable. See United States v.

U.S. Dist. Ct. for E.D. Mich., 407 U.S. 297, 313, 92 S. Ct. 2125, 2134 (1972)

(“[P]hysical entry of the home is the chief evil against which the . . . Fourth

Amendment is directed.”). There are exceptions to this rule, though, including one

“well-recognized exception [that] applies when the exigencies of the situation

make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable.” Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849,

1856 (2011) (quotation omitted) (alteration adopted).

      The “exigent circumstances” exception recognizes that police may

sometimes need to act without a warrant, as when there is a “danger of flight or

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escape, loss or destruction of evidence, risk of harm to the public or the police,

mobility of a vehicle, and hot pursuit.” United States v. Holloway, 290 F.3d 1331,

1334 (11th Cir. 2002). One of the most clear-cut justifications for entry without a

warrant is an emergency involving a “need to protect or preserve life.” Id. at 1335;

see also id. at 1337 (“[E]mergency situations involving endangerment to life fall

squarely within the exigent circumstances exception.”). This can include the lives

of people threatened by a suspect, or the suspect’s life if he is suicidal. See

Roberts v. Spielman, 643 F.3d 899, 905–06 (11th Cir. 2011) (per curiam). An

officer must have probable cause to believe that exigent circumstances exist, and

the reasonableness of that belief is “evaluated by reference to the circumstances

then confronting the officer, including the need for a prompt assessment of

sometimes ambiguous information concerning potentially serious consequences.”

Id. at 905 (quotation omitted).

      We conclude that the officers were authorized to enter the Smith home

without a warrant under the exigent circumstances exception. In light of the

specific circumstances confronting the officers, it was reasonable to believe that an

emergency situation existed. The babysitter told the officers that: (1) Mr. Smith

broke into the house; (2) Mr. Smith was not supposed to be in the house; (3) the

children were still inside; and (4) the children were alone when Mr. Smith started

trying to break in. Mrs. Smith also told the officers that Mr. Smith was “stressed

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out,” “worri[ed],” and not calm. Before entering the Smith home, the officers

observed a shattered glass door and a large rock lying on the floor. Officers

arriving later would have also been aware of radio reports that Mr. Smith was

armed with a knife, and refused to drop it. In these specific circumstances, and

having to quickly assess ambiguous information with serious consequences, it was

reasonable for the officers to conclude that Mr. Smith or his children were in

danger.

      The plaintiffs argue that this case is like United States v. Timmann, 741 F.3d

1170 (11th Cir. 2013), in which this Court found exigent circumstances did not

exist. There, a woman called police after she saw what she believed to be bullet

holes in her apartment’s wall. Id. at 1173. The responding officer inspected the

holes and talked with the complainant, but the neighbor in the abutting apartment

did not appear to be home that day or the next, when the officers returned. Id. at

1173–74. Eventually, the officers entered the neighbor’s apartment without a

warrant and found incriminating evidence. Id. at 1175. This Court held that

exigent circumstances did not exist because the situation had “none of the[] indicia

of an urgent, ongoing emergency.” Id. at 1180. Specifically, the bullet holes were

found almost two days before the officers went into the apartment; there was not a

chaotic scene; there was no evidence of violent behavior; there was no reason to

think the shooter was emotional; and he did not appear to be home, in any event.

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Id. at 1180–81. The same cannot be said here. Unlike in Timmann, these officers

were responding to an ongoing incident; the scene included a shattered door and a

babysitter who had seemingly fled outside; the officers had been told that Mr.

Smith was emotional; and the officers had been told that Mr. Smith was not

supposed to be in the house, yet he was inside with the young children.

       The plaintiffs also argue that the officers had a duty to further investigate

whether these circumstances were exigent before entering. However, the plaintiffs

do not cite any authority for imposing this heightened duty. We decline to impose

this duty, because it would be contrary to the core purpose of the exigent

circumstances exception. That is, to allow swift police action during an

emergency. See Holloway, 290 F.3d at 1334. The correct standard is probable

cause to believe that exigent circumstances exist, and the standard is met on these

facts. We affirm the District Court’s grant of summary judgment to the officers on

the plaintiffs’ illegal entry claim.

C.     Excessive Force Claims

       There are several claims on appeal related to the officers’ use of force

against Mr. Smith. First, the plaintiffs argue that the officers violated federal and

state law by deploying their tasers on two separate occasions. Second, the

plaintiffs claim that the officers violated federal and state law by fatally shooting

Mr. Smith. The District Court granted summary judgment to the officers on the

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tasering claims but denied summary judgment on the shooting claims. We affirm

that decision.

      To determine whether the force used to effect a seizure 4 was objectively

reasonable, we carefully balance “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing governmental

interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871

(1989) (quotation omitted). Although some amount of force is generally needed to

subdue a suspect, the amount used must be reasonably proportionate to the need

for force. Lee v. Ferraro, 284 F.3d 1188, 1197–98 (11th Cir. 2002). Courts

consider several factors in judging the weight of the government’s interests,

including “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396,

109 S. Ct. at 1872. “The ‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on the scene,” and the inquiry

“is an objective one.” Id. at 396–97, 109 S. Ct. at 1872.

      1.        Tasering

      The plaintiffs argue that the officers violated federal and state law by

deploying their tasers, and that the District Court erred by granting summary


      4
          The officers do not dispute that these uses of force constituted seizures.
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judgment on these claims. This Court has held that “the use of a taser gun to

subdue a suspect who has repeatedly ignored police instructions and continues to

act belligerently toward police is not excessive force.” Zivojinovich, 525 F.3d at

1073 (citing Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004)). This is

because, “where a suspect appears hostile, belligerent, and uncooperative, use of a

taser might be preferable to a physical struggle causing serious harm to the suspect

or the officer.” Fils v. City of Aventura, 647 F.3d 1272, 1290 (11th Cir. 2011)

(quotations omitted) (alteration adopted). On the other hand, unprovoked taser use

“against a non-hostile and non-violent suspect who has not disobeyed instructions

violates that suspect’s rights under the Fourth Amendment.” Id. at 1289. For

example, this Court has held that taser use crossed the line and became excessive

where the officer tasered a resisting suspect not once—which the plaintiff

conceded would have been justified—but up to a dozen times over two minutes.

See Oliver v. Fiorino, 586 F.3d 898, 905–07 (11th Cir. 2009).

      Leading up to the first tasing, Mr. Smith was armed with a knife. He

repeatedly disobeyed the officers’ commands to drop the weapon and moved

toward the officers while holding the weapon. On this record, the officers had

probable cause to arrest Mr. Smith under Georgia law for simple assault or

obstruction of officers. See O.C.G.A. § 16-5-20(a) (defining misdemeanor simple

assault as “[c]ommit[ing] an act which places another in reasonable apprehension

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of immediately receiving a violent injury”); id. § 16-10-24(a) (defining

misdemeanor obstruction of officers as “knowingly and willfully obstruct[ing] or

hinder[ing] any law enforcement officer in the lawful discharge of his official

duties”). The officers tried to get Mr. Smith to cooperate for two to three minutes

before deploying the taser. Although the crimes Mr. Smith was suspected of were

mere misdemeanors, a reasonable officer on the scene could have believed that Mr.

Smith posed a danger to himself or others and was actively resisting arrest. In

these circumstances, our precedent dictates that the officers’ single taser discharge

on Mr. Smith during the first tasering was reasonable.

      Leading up to the second tasering, Mr. Smith was barricaded in his

bathroom and repeatedly disobeyed the officers’ commands to come out. When he

eventually did start coming out of the bathroom, he moved toward the exit rather

than immediately surrendering. There is a material dispute over whether Mr.

Smith was armed at the time. Viewing the evidence and all factual inferences in

the light most favorable to the plaintiffs, we must assume for purposes of summary

judgment that Mr. Smith no longer had the knife at the time. Even so, our

precedent does not necessarily require that a noncompliant suspect be armed to

justify the use of a nonlethal taser. See, e.g., Zivojinovich, 525 F.3d at 1073

(holding that it was permissible to tase a handcuffed arrestee because he

belligerently sprayed blood at an officer when he spoke); Draper, 369 F.3d at 1278

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(holding that it was permissible to tase an unarmed truck driver because he was

belligerent and noncompliant during a traffic stop). In this tense situation, we

cannot say that the officers’ single use of a taser on Mr. Smith was unreasonable.5

       2.      Shooting

       The officers argue that they are entitled to qualified immunity on the claims

related to the fatal shooting of Mr. Smith, and that the District Court erred by

denying summary judgment on these claims. Deadly force is, of course, the most

severe deprivation, and the government must have significant interests to justify it.

The Supreme Court has said, “It is not better that all [] suspects die than that they

escape. Where the suspect poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him does not justify the use of

deadly force.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701 (1985).

Our Constitution only permits an officer to use deadly force if 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 serious 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.

McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (quotation omitted).

Because there is a genuine dispute of fact over whether Mr. Smith was armed and
       5
         For the same reasons, the officers did not violate Georgia law by deploying their tasers.
See City of East Point v. Smith, 365 S.E.2d 432, 434 (Ga. 1988) (using the same test of objective
reasonableness applied in Fourth Amendment cases for a search and seizure claim brought under
the Georgia Constitution).
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dangerous when he was killed, we affirm the District Court’s denial of summary

judgment on these claims.

       As is often true in qualified immunity cases, there are different accounts of

what happened here. The plaintiffs say that Mr. Smith dropped the kitchen knife

on the staircase when he was tased the first time and did not pick it back up. We

must therefore infer that he did not have a knife while barricaded in the bathroom.

The officers say, to the contrary, that Mr. Smith was visibly armed with the kitchen

knife while barricaded in the bathroom, and came out of the bathroom violently

slashing with it. There is material evidence in the record supporting both accounts.

On the plaintiffs’ side, there is the testimony of Kasib, who witnessed his father

dropping the kitchen knife;6 the dispatch log, which twice states that Mr. Smith

had a knife before he was tasered on the stairs, but never says he still had it

afterward; and a portion of an Internal Affairs report that describes the crime scene

in detail but says nothing about a knife. On the officers’ side, there are the




       6
          According to Mrs. Smith, Kasib also told her that he saw one of the officers pick up the
knife. As the District Court noted, this is hearsay. The general rule is that hearsay cannot be
considered at the summary judgment stage, but there is an exception “if the statement could be
reduced to admissible evidence,” for example by “hav[ing] the hearsay declarant testify directly
to the matter at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293–94 (11th Cir. 2012)
(quotation omitted). Because Kasib could testify to these facts at trial, the District Court did not
err in considering this statement. We reject the officers’ argument that this statement should
have been excluded because it contradicts Kasib’s deposition testimony. See id. at 1294. Kasib
was never asked what happened to the knife after his father dropped it, and he never offered a
contradictory statement during the deposition.
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officers’ accounts as well as a crime scene photo that shows a kitchen knife lying

near Mr. Smith’s body, at his feet.

       It is not this Court’s function to weigh the facts and decide the truth of the

matter at summary judgment. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.

Instead, where there are “varying accounts of what happened,” the proper standard

requires us to adopt the account most favorable to the non-movants. Perez, 809

F.3d at 1217. Applying that standard here, we accept for purposes of summary

judgment that Mr. Smith was unarmed when he was barricaded inside the

bathroom and when he exited.7 It is reasonable to infer from the plaintiffs’

evidence that Mr. Smith remained unarmed because he did not get a second

kitchen knife either in the few steps between his upstairs landing and his bathroom,

or inside the bathroom itself. The officers’ argument to the contrary is purely

speculative, and thus does not refute this inference. 8

       With the facts properly framed, we turn to whether these facts can support a

clearly established constitutional violation. First, the use of deadly force in this
       7
          We accept this version of events bearing in mind that “what are considered the ‘facts’
[on summary judgment] may not turn out to be the ‘actual’ facts if the case goes to trial.” Perez,
809 F.3d at 1217.
        8
          This case is not like Wood v. City of Lakeland, 203 F.3d 1288 (11th Cir. 2000), as the
officers contend. In Wood, this Court rejected a magistrate judge’s subjective interpretation of
an autopsy report in favor of the officers’ testimony because the officers were “the only persons
who were . . . in position to see or hear what happened [during a fatal shooting].” Id. at 1290–91.
Wood is distinguishable because the autopsy report was ambiguous and the magistrate relied on
his own subjective interpretation to guess at the suspect’s movements during the encounter. Id.
Here, Kasib was in a position to see and hear his father dropping the kitchen knife before running
into the bathroom, and his unambiguous eyewitness testimony is supported by other evidence in
the record.
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circumstance was a constitutional violation. The officers did not have probable

cause to believe Mr. Smith posed a threat of serious physical harm when he left his

bathroom without a weapon and moved toward the only exit. To the contrary, Mr.

Smith had never made physical contact with the officers or explicitly threatened

them; he asked them to put down their weapons and told them he was afraid; and

he appeared to be trying to get out of the area after hiding in his bathroom and

closet. The officers had no reason to believe that deadly force was necessary to

prevent Mr. Smith’s escape, given that he had merely committed misdemeanor

offenses and was completely surrounded. And despite having time to do so while

Mr. Smith was barricaded in the bathroom, the officers did not warn him that they

might use deadly force. The government’s interest was not sufficiently weighty to

justify the use of deadly force on these facts. See McCullough, 559 F.3d at 1206.

We have found it unreasonable for police to shoot an unarmed suspect, even when

the suspect has physically struggled with officers. See, e.g., Salvato v. Miley, 790

F.3d 1286, 1293–94 (11th Cir. 2015) (holding that it was unreasonable for an

officer to shoot an unarmed suspect after he fought with police but then backed out

of striking distance); Gilmere v. City of Atlanta, 774 F.2d 1495, 1496–97, 1502

(11th Cir. 1985) (en banc) (holding that it was unreasonable for an officer to shoot

a drunken suspect as he ineffectually fought with police), abrogated on other

grounds by Graham, 490 U.S. 386, 109 S. Ct. 1865. And the Supreme Court has

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ruled it unreasonable to shoot an unarmed person who is escaping, even when the

person has committed a felony. See Garner, 471 U.S. at 11, 105 S. Ct. at 1701.

      Second, the violated right was clearly established at the time of the shooting.

There are three ways to show that a right was clearly established: “(1) case law

with indistinguishable facts clearly establishing the constitutional right; (2) a broad

statement of principle within the Constitution, statute, or case law that clearly

establishes a constitutional right; or (3) conduct so egregious that a constitutional

right was clearly violated, even in the total absence of case law.” Lewis v. City of

W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citations omitted).

Garner clearly established that Mr. Smith had a right to be free from deadly force

when he was not threatening the officers, was merely suspected of misdemeanor

offenses, and was attempting to escape. See Garner, 471 U.S. at 11, 105 S. Ct. at

1701; see also Salvato, 790 F.3d at 1294 (concluding that Garner clearly

established the right of an unarmed, retreating suspect to be free from deadly

force); Morton v. Kirkwood, 707 F.3d 1276, 1282–83 (11th Cir. 2013) (same);

Lundgren v. McDaniel, 814 F.2d 600, 603 (11th Cir. 1987) (noting that this right

was not clearly established until Garner). The officers had “reasonable warning”

that fatally shooting an unarmed person suspected of a misdemeanor in his own

home merely because he was moving toward them was a constitutional violation.

Holloman, 370 F.3d at 1277 (quotation omitted). Thus, we affirm the District

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Court’s denial of summary judgment on the plaintiffs’ § 1983 claim against

Officers Ings and LePage for shooting Mr. Smith.

      We also affirm the District Court’s denial of summary judgment on the

plaintiffs’ parallel state-law claim. Georgia has an analogue to qualified immunity

called “official immunity.” See Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir.

2007). To overcome official immunity, the plaintiff must show that the officer had

“actual malice or an intent to injure.” Cameron v. Lang, 549 S.E.2d 341, 345 (Ga.

2001). In a police shooting case, this analysis often comes down to whether the

officer acted in self-defense: “[I]f [officers] shot [the suspect] intentionally and

without justification, then they acted solely with the tortious actual intent to cause

injury. On the other hand, if [officers] shot [the suspect] in self-defense, then they

had no actual tortious intent to harm him.” Kidd v. Coates, 518 S.E.2d 124, 125

(Ga. 1999) (quotation and citation omitted).

      The same dispute of facts that prevents summary judgment on the plaintiffs’

§ 1983 claim related to the shooting also prevents summary judgment on their

parallel state-law claim. That is, there remains a question about whether Mr. Smith

was armed and dangerous when he was killed. According to Georgia law, this

disputed question is dispositive of the claim. See id. If Mr. Smith was armed and

dangerous, then the officers legitimately acted in self-defense by shooting him. If,

on the other hand, Mr. Smith was merely leaving the bathroom with no weapon,

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then the officers acted with actual tortious intent to injure. See id. It is a jury’s

place to resolve this dispute of fact. See Anderson, 477 U.S. at 249–50, 106 S. Ct.

at 2511.

D.    Supervisory Liability Claims

      The plaintiffs argue that Sgt. Gamble was liable as a supervisor under

federal and state law for the second tasing and the fatal shooting of Mr. Smith, and

that the District Court erred by granting summary judgment on these claims.

“Supervisory liability under section 1983 may be shown by either the supervisor’s

personal participation in the acts that comprise the constitutional violation or the

existence of a causal connection linking the supervisor’s actions with the

violation.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (per curiam).

Personal participation occurs when, for example, the supervisor inflicts the injury

himself. See Hewett v. Jarrard, 786 F.2d 1080, 1087 (11th Cir. 1986). A causal

connection can be established “when facts support an inference that the supervisor

directed the subordinates to act unlawfully or knew that the subordinates would act

unlawfully and failed to stop them from doing so.” Mercado v. City of Orlando,

407 F.3d 1152, 1158 (11th Cir. 2005) (quotation omitted). This standard is quite

rigorous. Id. In light of this demanding standard, we must affirm the District

Court’s grant of summary judgment to the officers on these claims.




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       First, no supervisory liability can arise from the second tasing of Mr. Smith

because we have concluded it was not a constitutional violation. See Lewis, 855

F.2d at 738. Second, the plaintiffs’ § 1983 supervisory liability claim related to the

shooting fails because Sgt. Gamble neither participated in the shooting nor had a

legally sufficient causal connection to it. The District Court properly rejected the

plaintiffs’ argument, based on the out-of-circuit case of Billington v. Smith, 292

F.3d 1177 (9th Cir. 2002), that Sgt. Gamble personally participated by escalating

the situation. Under this Circuit’s law, Sgt. Gamble did not personally participate

because he did not shoot at Mr. Smith or order any of the officers to do so, and his

mere presence at the scene was not enough. See Mercado, 407 F.3d at 1158.

Whether Sgt. Gamble’s actions were causally connected to the shooting, however,

is a closer call.

       As the District Court noted, Sgt. Gamble may have made “a tragic mistake

of judgment” by not calling in the Special Weapons and Tactics (“SWAT”) team.

The DeKalb County Police Department Manual states that the SWAT team handles

“barricaded suspects,” in order to “contain the situation and attempt to negotiate a

peaceful end to the situation.” Once Mr. Smith closed himself in his bathroom and

refused to come out, there may have been a so-called barricade situation. See Doc.

116-8 at 4 (defining a “barricade situation” as “[t]he standoff created by an armed

or potentially armed suspect in any location, whether fortified or not, who is

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refusing to comply with police demands for surrender”); see also Doc. 123 at 74–

76 (one of Sgt. Gamble’s subordinates stating that he thought it was a barricade

situation); Doc. 74-1: 26 (police dispatch log indicating that Mr. Smith was

barricaded in the bathroom). Nevertheless, Sgt. Gamble’s possible mistake of

judgment does not rise to the level of creating a causal connection between his acts

and the shooting, because there are no facts suggesting that he either directed the

officers to act unlawfully or knew they would. See Mercado, 407 F.3d at 1158.

      Finally, the plaintiffs’ state-law supervisory liability claims related to the

shooting fail because Sgt. Gamble did not violate a ministerial duty or act with

actual malice. Under Georgia law, official immunity is defeated if the officer

negligently performed a ministerial act. Grammens v. Dollar, 697 S.E.2d 775, 777

(Ga. 2010). “A ministerial act is commonly one that is simple, absolute, and

definite, arising under conditions admitted or proved to exist, and requiring merely

the execution of a specific duty. A discretionary act, however, calls for the

exercise of personal deliberation and judgment.” Id. (quotation omitted).

Choosing whether to call in the SWAT team was not a ministerial act because Sgt.

Gamble had to exercise his personal judgment in order to assess the evolving

situation and then decide whether it warranted SWAT intervention. See Hill v.

Jackson, 783 S.E.2d 719, 725 (Ga. Ct. App. 2016). Neither have the plaintiffs

shown that Sgt. Gamble had actual malice. There are no facts suggesting that Sgt.

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Gamble had a “deliberate intention” to cause the fatal shooting of Mr. Smith.

Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). We must therefore affirm

the District Court’s grant of summary judgment on the plaintiffs’ supervisory

liability claims.

                                    *     *      *

       The plaintiffs challenged most of the officers’ actions on the day of this

tragedy. Many of those actions were reasonable under these tragic circumstances.

But we cannot say, as a matter of law, that Officers Ings and LePage acted

appropriately when they shot and killed Mr. Smith. It is for a jury to decide

whether their actions were justified. We therefore AFFIRM the District Court’s

well-considered order partially granting and partially denying summary judgment

to the officers in this case.

       AFFIRMED.




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