               Case: 12-12933      Date Filed: 02/25/2013   Page: 1 of 6

                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-12933
                            ________________________

                    D. C. Docket No. 3:11-cv-00127-HES-MCR

ASHLEY BODDEN,
individually and as Personal Representative
of the Estate of Franklin Raymond Bodden,

                                                            Plaintiff-Appellant,

                                         versus

HENRY A. BODDEN,

                                                            Intervenor-Plaintiff,

ERNEST COLE,
Deputy, individually,
DAVID BRIGHT, II,
individually,
SHERIFF, NASSAU COUNTY,
in his official capacity as Sheriff of the
Nassau County Sheriff's Office,
KATHERINE BODDEN-GELARO,
Personal Administrative of the Estate
of Franklin R. Bodden (deceased),
a.k.a. Katherine Bodden-Genaro,

                                                            Defendants-Appellees.
                Case: 12-12933       Date Filed: 02/25/2013       Page: 2 of 6

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                          _________________________
                                (February 25, 2013)

Before DUBINA, Chief Judge, BLACK and ALARCÓN, * Circuit Judges.

PER CURIAM:

      Appellant Ashley Bodden, individually and as the representative of the

estate of Franklin Raymond Bodden (Bodden), appeals the district court’s grant of

summary judgment to Deputy Ernest Cole and Sheriff Thomas Seagraves on her

42 U.S.C. § 1983 civil rights complaint. In Count I of her complaint, Appellant

sued Deputy Cole, alleging that his use of deadly force against Bodden on the night

of September 11, 2010, violated the Fourth Amendment’s prohibition on

unreasonable seizures. In Count II, Appellant pled a cause of action for municipal

liability against Seagraves in his official capacity as the sheriff of Nassau County.

After careful review, we affirm.

                                         I. FACTS

      On September 11, 2010, Deputy Cole shot and killed Bodden. Deputy Cole

had received second-hand information from an informant that Bodden would be

travelling through Callahan, Florida, that night with marijuana in his possession.

      *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.


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As Deputy Cole was concluding an unrelated traffic stop, he saw Bodden on a

motorcycle. Cole followed Bodden as he turned into a parking lot, and activated

his emergency lights. A dashboard camera in Cole’s car recorded the events of

that night, starting 30 seconds before Cole’s activation of his emergency lights.

After stopping, Deputy Cole checked Bodden’s license, as well as the license of

Bodden’s passenger, Anthony Weeks. Bodden and Weeks consented to being

searched, so Deputy Cole moved Weeks to the front left wheel of his car to

conduct a pat-down.

      During the pat-down, a plastic bag fell from Weeks’ pants. At that point, a

civilian who was riding along with Cole that evening, David Bright, began

shouting. Deputy Cole testified he saw Bodden pull something out of his

waistband that looked like a small chrome pistol. While drawing his own weapon,

Cole yelled at Bodden to drop the object and show his hands. Bodden, however,

put the object behind his leg. Bodden turned toward Cole with the object in his

hand, and Cole fired two shots. The object in Bodden’s hand turned out to be a

package containing a misdemeanor quantity of marijuana.

                                 II. DISCUSSION

      Appellant argues that Deputy Cole’s use of deadly force was objectively

unreasonable because Bodden was unarmed and posed no threat when Cole shot

him. Appellant vigorously disagrees with the district court’s findings regarding the


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videotape of the incident recorded by Deputy Cole’s dashboard camera. She

contends the video does not show anything in Bodden’s left hand, Bodden cannot

be seen to turn towards Cole, and nothing dropped from Bodden’s hand after he

was shot. Deputy Cole argues that he mistakenly, but reasonably, believed that

Bodden was in the act of brandishing a gun and his use of deadly force was

therefore objectively reasonable.

       Based upon our de novo review of the record, including the videotape, see

Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010), we agree with the district

court’s summation of the events depicted in the video. 1 The district court rejected

Appellant’s version of events, explaining:

       The video is clear that Bodden is holding a cigarette in his right hand.
       It is Bodden’s left hand that is the focus of this Court’s attention. It is
       with his left hand that Bodden retrieves the bag of marijuana from his
       pants. Bodden holds this bag in his hand until he is shot by Cole. In
       fact, Bodden can be seen dropping this object, from his left hand,
       when he is reaching for his chest area after being shot.

       Our review of the video confirms that, during the traffic stop, Bodden

quickly moved his hand away from the area near his left side, which caused Bright

to shout. Deputy Cole and Bright began simultaneously shouting orders at

Bodden, who turned toward Cole with an object in his hand. Deputy Cole then
       1
         It is undisputed that Deputy Cole was acting within the scope of his discretionary
authority when the shooting occurred. See Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291
(11th Cir. 2009). Thus, the burden shifted to Appellant to establish that Deputy Cole’s conduct
violated a clearly established statutory or constitutional right of which a reasonable person would
have known. See id.


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fired two shots. In the video, as Bodden doubles over, a dark object can be seen to

drop from his left hand. 2

       Our qualified immunity jurisprudence cautions that “we must be careful to

evaluate the reasonableness of an officer’s conduct on a case-by-case basis from

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

vision of hindsight.” Penley, 605 F.3d at 850 (internal quotation marks omitted).

Thus, under the Fourth Amendment, Deputy Cole was entitled to qualified

immunity “if an objectively reasonable officer in the same situation could have

believed the use of force was not excessive.” Brown v. City of Huntsville, 608 F.3d

724, 738 (11th Cir. 2010); see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821

(11th Cir. 2010) (explaining that an officer may be entitled to qualified immunity

even if his belief in the necessity of force was mistaken). In light of the

information available to Deputy Cole and the tense, uncertain, and rapidly evolving

situation he confronted, we conclude the use of deadly force was objectively

reasonable and decline to second-guess his split-second judgment. See Penley, 605

F.3d at 850; see also Graham v. Connor, 490 U.S. 386, 396–97 (1989).




       2
         We need not adopt the nonmoving party’s version of the facts to the extent it is clearly
contradicted by a videotape such that no reasonable jury could believe it. See Beshers v.
Harrison, 495 F.3d 1260, 1262 n.1 (11th Cir. 2007); see also Scott v. Harris, 550 U.S. 372, 380–
81 (2007).
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      In the absence of a Fourth Amendment violation, Sheriff Seagraves cannot

be liable in his official capacity under § 1983, and we need not address Appellant’s

cause of action for municipal liability. See Penley, 605 F.3d at 854–55.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment.




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