              Case: 14-11728     Date Filed: 11/04/2014   Page: 1 of 10


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-11728
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:13-cv-00584-TWT


ROSA HAMPTON,
individually, and as Administrator of the
Estate of Maurice Hampton, and on behalf of
the minor children of the Estate of Maurice Hampton,

                                                              Plaintiff-Appellee,

                                       versus

THOMAS ATZERT, JR.,
individually, and in his capacity as a City
of Atlanta Police Officer,


                                                              Defendant-Appellant.



                           ________________________

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

                                (November 4, 2014)
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Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:

      Thomas Atzert, Jr., an Atlanta Police Department officer, appeals the district

court’s denial of his motion for summary judgment. This case arose from a 42

U.S.C. § 1983 suit filed by Rosa Hampton, individually and as the Administrator

of the Estate of Maurice Hampton, and on behalf of the minor children of the estate

of Maurice Hampton (hereinafter “Hampton”), against the City of Atlanta and

Officer Atzert. Hampton sued for use of excessive force in violation of the Fourth

Amendment and violations of state law in connection with the June 30, 2011, fatal

shooting of Maurice Hampton. The district court granted summary judgment to

the City of Atlanta, but denied Officer Atzert’s motion for summary judgment. On

appeal of that denial, Atzert raises three issues: (1) whether his use of force was

reasonable under the Fourth Amendment; (2) whether he is entitled to qualified

immunity on the § 1983 claim; and (3) whether he is entitled to official immunity

on the state law claims. Atzert also challenges the district court’s consideration of

the deposition testimony of an eyewitness bystander. This deposition was in the

record but not in Atzert’s unopposed statement of undisputed material facts. After

careful consideration, we affirm the district court.

                                          I.

      To begin, we address whether the district court improperly relied on


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information contained in the record but not in Atzert’s statement of undisputed

material facts—namely, the deposition of Carold Williams, the sole eyewitness

bystander. We review a court’s application of local rules for abuse of discretion.

Reese v. Herbert, 527 F.3d 1253, 1267 n.22 (11th Cir. 2008). Under Northern

District of Georgia Local Rule 56.1(B), a district court will accept each of the

movant’s facts admitted at summary judgment unless the nonmovant directly

refutes these facts with concise responses. 1 Hampton filed no response to Atzert’s

statement of undisputed facts as Rule 56.1(B) requires, but the district court

nonetheless relied heavily on a deposition not contained in Atzert’s undisputed

facts when it denied Atzert’s summary judgment motion. We find no error in this

reliance.

       In Reese, we stated that a district court has “broad discretion” to “overlook

[a nonmoving party’s] noncompliance with Local Rule 56.1” and to look beyond

the confines of a statement of undisputed facts on summary judgment. 527 F.3d at

1270. In fact, we favorably cited our sister circuit’s holding—directly on point—

that “while a court is not required to consider what the parties fail to point out in

their Local Rule 56.1 statements, it may in its discretion opt to conduct an


1
  Local Rule 56.1(B)(2)(a)(2) reads: “[t]his Court will deem each of the movant’s facts as
admitted unless the respondent: (i) directly refutes the movant’s fact with concise responses
supported by specific citations to evidence (including page or paragraph number); (ii) states a
valid objection to the admissibility of the movant’s fact; or (iii) points out that the movant’s
citation does not support the movant’s fact or that the movant’s fact is not material or otherwise
has failed to comply with the provisions set out in LR 56.1 B.(1).”
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assiduous review of the record even where one of the parties has failed to file such

a statement.” Id. at 1271 (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d

Cir. 2001)). This holding comports with our general practice of giving “great

deference to a district court’s interpretation of its local rules.” Clark v. Hous.

Auth. of City of Alma, 971 F.2d 723, 727 (11th Cir. 1992). Based on this

precedent, the district court did not abuse its discretion by looking to Williams’s

deposition in making its summary judgment ruling.

                                          II.

      We review de novo a district court’s denial of summary judgment. Fils v.

City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). Summary judgment may

be granted only when “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). In viewing this evidence, the court draws all reasonable inferences

in the light most favorable to the nonmoving party, and “when conflicts arise

between the facts evidenced by the parties, we credit the nonmoving party’s

version.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc).

      Here, Atzert argues that the district court erred in denying his motion for

summary judgment because there are no genuine issues of material fact as to (1)

whether he unreasonably seized Hampton in violation of Hampton’s Fourth

Amendment rights through the use of excessive deadly force; (2) whether he was


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entitled to qualified immunity on Hampton’s federal claims; and (3) whether he

was entitled to official immunity on Hampton’s state law claims. We affirm the

district court on all three points.

                                          A.

       First, there are genuine issues of material fact about whether Atzert

unreasonably seized Hampton in violation of the Fourth Amendment. The Fourth

Amendment’s freedom from unreasonable seizures includes the right to be free

from excessive force during an arrest. Graham v. Connor, 490 U.S. 386, 394–95,

109 S. Ct. 1865, 1871 (1989). According to the Supreme Court, “[d]etermining

whether the force used to effect a particular seizure is reasonable under the Fourth

Amendment 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. at 396, 109 S. Ct. at 1871 (quotation marks

omitted). The Court has held that the use of deadly force “to prevent the escape of

all felony suspects, whatever the circumstances, is constitutionally unreasonable.”

Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701 (1985). “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 to

do so.” Id. at 11, 105 S. Ct. at 1701. As such, “[a] police officer may not seize an

unarmed, nondangerous suspect by shooting him dead.” Id. at 11, 105 S. Ct. at


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1701. However, “if the suspect threatens the officer with a weapon or there is

probable cause to believe that he has committed a crime involving the infliction or

threatened infliction of serious physical harm, deadly force may be used if

necessary to prevent escape, and if, where feasible, some warning has been given.”

Id. at 11–12, 105 S. Ct. at 1701. Factors we must consider in deciding whether the

use of deadly force was reasonable include “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.

      Viewing the record in the light most favorable to Hampton, there are

genuine issues of material fact about whether a reasonable officer in Atzert’s

position could have believed that Hampton posed an immediate threat to Atzert or

others. According to Williams—the only eyewitness other than Atzert himself—

after an initial chase, Atzert managed to restrain Hampton “facedown [sic] . . . in

the[] weeds.” Williams Dep. 24, Nov. 8, 2013, ECF No. 41-5. Atzert then had

Hampton stand and began to walk him down a road. Id. at 25. As they walked,

Williams saw Hampton “br[ea]k loose” from Atzert and “start[] running.” Id. at

26. According to Williams, “when [Hampton] started to run, the officer pulled his

weapon and with both hands aimed and fired” into Hampton. Id. Williams

explicitly affirmed that he never saw “Mr. Hampton with any weapons” including


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“any baton.” Id. at 31. Also, the district court found no evidence in the record that

Atzert warned Hampton before shooting him. Under this version of events, Atzert

could not have reasonably believed that Hampton was an immediate threat. At

most, Atzert might have believed Hampton would escape, and, on these facts, the

harm of “failing to apprehend him does not justify the use of deadly force to do

so.” Garner, 471 U.S. at 11, 105 S. Ct. at 1701.

      Officer Atzert, of course, tells a different story. Among other things, he says

Hampton resisted arrest throughout their encounter, committed physical violence

against Atzert that resulted in serious injury, and—most importantly—was holding

a dangerous police baton at the time Atzert shot him. But this type of factual

dispute must be resolved by a trier of fact, rather than by a judge at the summary

judgment stage. We are certainly mindful that “[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. But even given the deference

ordinarily granted to officers in the field, the record does not allow us to rule as a

matter of law that Atzert acted reasonably. Indeed, almost all of Atzert’s analysis

on appeal relies on the assumption that Hampton was holding a police baton. This

version of events is plainly disputed. The district court therefore properly denied


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Atzert’s motion for summary judgment.

                                          B.

      There are also genuine issues of material fact about whether Atzert is

entitled to qualified immunity. Qualified immunity protects government officials

performing discretionary functions from “liability for civil damages.” Wilson v.

Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1696 (1999). Under the Supreme

Court’s qualified immunity standard, even if “a violation could be made out on a

favorable view of the parties’ submissions,” a court must also ask whether the right

at issue was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151, 2156 (2001). In excessive-force cases, “[t]he relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Id. at 202, 121 S. Ct. at 2156. Just as with any other disputed issue, “if the

evidence at the summary judgment stage, viewed in the light most favorable to the

plaintiff, shows there are facts that are inconsistent with qualified immunity being

granted, the case and the qualified immunity issue along with it will proceed to

trial.” Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002).

      The version of the record facts most favorable to Hampton would make it

clear to a reasonable officer in Atzert’s shoes that his conduct was unlawful. One

way of showing that Atzert violated a clearly established right is by pointing to a


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“broader, clearly established principle [that] should control the novel facts of this

situation.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005).

And the Supreme Court has made clear that “[w]here [a] 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 to do so.” Garner,

471 U.S. at 11, 105 S. Ct. at 1701. In other words, it is clearly established that

killing a person merely to prevent his escape is not justifiable. Assuming, as we

must, that Hampton held no weapon, received no warning from Atzert, and was

running away from Atzert while partially restrained when he was shot, “it would

be clear to a reasonable officer that [shooting Hampton] was unlawful in the

situation [Atzert] confronted.” Saucier, 533 U.S. at 202, 121 S. Ct. at 2156. Thus,

the district court correctly held that it was “possible that Atzert was not justified in

using deadly force to prevent Hampton’s escape.” Op. & Order 11, ECF No. 45

(emphasis added).

                                           C.

      Finally, there are genuine issues of material fact about whether Atzert is

entitled to official immunity from the state-law claims against him. In Georgia,

“[p]ublic agents are immune from liability for their discretionary acts unless they

are done with malice or intent to injure.” Taylor v. Waldo, 709 S.E.2d 276, 281

(Ga. Ct. App. 2011) (emphasis added). The Georgia Supreme Court has addressed


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the “intent to injure” prong specifically in the context of an officer’s use of deadly

force:

         [A]n officer who, in the performance of his official duties, shoots
         another in self-defense is shielded from tort liability by the doctrine of
         official immunity. One who acts in self-defense does not act with the
         tortious intent to harm another, but does so for the non-tortious
         purpose of defending himself. OCGA § 51-11-1. Because an officer
         does not lose the right to defend himself when he acts in his official
         capacity, we hold that an injurious work-related act committed by an
         officer, but justified by self-defense, comes within the scope of
         official immunity. Thus, if [an officer] shot [a person] intentionally
         and without justification, then [the officer] acted solely with the
         tortious ‘actual intent to cause injury.’ On the other hand, if [an
         officer] shot [a person] in self-defense, then [the officer] had no actual
         tortious intent to harm [the person], but acted only with the justifiable
         intent which occurs in every case of self-defense, which is to use such
         force as is reasonably believed to be necessary to prevent death or
         great bodily injury to [himself] or the commission of a forcible felony.

Kidd v. Coates, 271 Ga. 33, 33 (1999) (citation omitted).

         Here, there is a genuine dispute as to whether Officer Atzert used “such

force as is reasonably believed to be necessary to prevent death or great bodily

injury . . . or the commission of a forcible felony.” Id. Viewing the evidence in

the light most favorable to Hampton, the district court did not err in denying

summary judgment on the official immunity issue.

                                            III.

         For these reasons, we AFFIRM the district court.




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