                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               Aug. 6, 2009
                                No. 08-16538                 THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                          ________________________

                   D. C. Docket No. 07-00134-CV-T-30-TBM

WESLEY CARUTHERS, JR.,


                                                                  Plaintiff-Appellee,

                                     versus

SHAWNEE MCCAWLEY,
Polk County Sheriff Dept. acting under
color of State Law, in his individual
capacity and his official capacity,

                                                            Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                (August 6, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
       Deputy Sheriff Shawnee McCawley brings this interlocutory appeal from the

district court’s denial of summary judgment on qualified immunity grounds.

Wesley Caruthers sued McCawley under 42 U.S.C. § 1983, alleging that

McCawley’s use of deadly force in apprehending him after he had

surrendered—specifically, shooting at him four times, hitting him once in the chest

and once in the spine—constituted excessive force in violation of the Eighth and

Fourteenth Amendments to the United States Constitution.1 The district court

found that McCawley was not, as a matter of law, entitled to qualified immunity

because, viewing the facts in the light most favorable to Caruthers, a reasonable

jury could find that McCawley violated Caruthers’s clearly established

constitutional right to be free from excessive force.2

       We review de novo a district court’s grant or denial of summary judgment,

applying the same legal standards as the district court. See Whatley v. CNA Ins.

Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). Under Federal Rule of Civil

       1
          Caruthers sued McCawley in both his personal and official capacities. The district court
dismissed the official capacity claim on the grounds that Caruthers’s complaint failed to set forth
facts indicating that the alleged constitutional violation arose out of a custom or policy of the
Sheriff’s Office. Caruthers does not challenge this determination. Therefore, this appeal
concerns only Caruthers’s personal capacity claim and whether McCawley is entitled to
qualified immunity from suit.
       2
          This court has interlocutory appellate jurisdiction to consider legal issues that are the
basis for a denial of summary judgment on qualified immunity grounds. See Crenshaw v. Lister,
556 F.3d 1283, 1288 (11th Cir. 2009) (citing cases). Whether a reasonable jury could have
found that McCawley violated Caruthers’s clearly established rights is a question of law. Id. at
1289.

                                                 2
Procedure 56(c):

       [s]ummary judgment is appropriate if the evidence before the court
       shows that there is no genuine issue as to any material fact and that
       the moving party is entitled to a judgment as a matter of law. In
       making this determination, the court must view all evidence and make
       all reasonable inferences in favor of the party opposing summary
       judgment.

A genuine issue of material fact does not exist unless there is sufficient evidence

favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (internal marks and

citations omitted).

       The following facts were before the district court at summary judgment: It

is undisputed that before his arrest, Caruthers was wanted by law enforcement for

several bank robberies, including one earlier in the day of his arrest during which

Caruthers had threatened to kill the bank teller. It is further undisputed that on the

day of his arrest, Caruthers and a woman named Sandy Gibbons were discovered

in a motel room by local law enforcement officers.3 Caruthers and Gibbons

initially refused to exit the room, and negotiations ensued. During the

negotiations, five members of an Emergency Response Team (“ERT”), including



       3
         The officers believed that Gibbons, who was apparently Caruthers’s girlfriend, was a
hostage because they could see through the motel room window that Caruthers was blocking her
from leaving the room and could hear the two arguing. Caruthers did not appear to be physically
harming Gibbons.

                                               3
McCawley, assumed a “stack” formation outside of the room. McCawley carried a

shield and a .45 caliber handgun and stood at the front of the stack as the “shield

man.” After two hours of negotiations between Caruthers and the officers, the

ERT members learned that Gibbons was going to come out of the room. The door

of the motel room opened, and Caruthers came out.

       What happened next is the subject of the factual dispute between the parties.

According to Caruthers’s sworn complaint, before opening the door, he shouted to

the officers that he was coming out to surrender. He then exited the room with his

hands in a “surrender position,” holding a white towel, in accordance with earlier

instructions from one of the officers. When he did not see any deputies in front of

him, he turned to his right and saw the ERT kneeling down behind a shield. He

heard officers yelling at him to raise his hands higher and turn around and get on

the ground. He attempted to raise his hands higher, at which time he was shot in

the chest by McCawley. At that point, he turned and ran in the opposite direction,

after which McCawley shot at him three more times, striking him in the spine.

While he was fleeing, another officer shot at him using a shotgun loaded with non-

lethal “bean bags.” After he was shot in the spine, Caruthers fell to the ground, at

which point a third officer shot him with a taser gun.4


       4
         Caruthers survived the shootings but suffered severe injuries requiring multiple
surgeries.

                                                4
      McCawley asserts that Caruthers was not holding his hands in a surrender

position and appeared instead to be holding up a “dark object” when he exited then

motel room “looking both ways,” then “suddenly turning and spinning his body

towards [McCawley.]” At least four officers present at the scene stated under oath

during a post-incident investigation that they saw Caruthers holding a towel when

he exited the motel room and did not see a weapon. Therefore, in addition to the

allegations in Caruthers’s sworn complaint, the post-incident interviews clearly

establish a genuine issue of material fact regarding whether a reasonable officer

would have believed that Caruthers was armed and deadly force was justified. The

district court did not err in denying summary judgment on qualified immunity

grounds.

      AFFIRMED.




                                          5
