           Case: 15-12239   Date Filed: 04/21/2016   Page: 1 of 16


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 15-12239
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:14-cv-61303-RLR

ABEL MARTINEZ,

                                                           Plaintiff–Appellant,

versus



CITY OF PEMBROKE PINES,
OFFICER KEVIN KING, individually,


                                                        Defendants–Appellees.

                       ________________________

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

                             (April 21, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff appeals the district court’s order granting summary judgment on his

federal excessive force and state battery and negligence claims. Defendant Kevin

King, a police officer for the City of Pembroke Pines, shot and injured Plaintiff

while attempting to take him into custody. Plaintiff subsequently brought this

action, asserting a § 1983 excessive force claim against King in his individual

capacity and state battery and negligence claims against the City. The district

court granted summary judgment to Defendants on all of Plaintiff’s claims.

Viewing the evidence in the light most favorable to Plaintiff, we agree with the

district court that summary judgment is warranted and thus AFFIRM the district

court’s order.

                                  BACKGROUND

I.    Factual Background

      Early on the morning of June 10, 2010, Plaintiff’s girlfriend Yanet

Hernandez called 911 to report that Plaintiff was unresponsive and was making

strange noises, turning blue, and foaming at the mouth. The paramedics who

responded to the call went to Plaintiff’s house and met with Hernandez, who

primarily spoke Spanish. They were directed to a bedroom at the back of the

house where they found Plaintiff lying in his bed and starting to wake up.

      Pembroke Pines police officer Kevin King, responding to a police medical

emergency dispatch, arrived at the house a few minutes after the paramedics. The


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police dispatch did not indicate that any criminal conduct had occurred, and King

had no reason to suspect that a crime was in progress. When he arrived at the

house, King heard yelling and saw paramedics standing in the doorway of a

bedroom. King went to the bedroom, where he found Plaintiff pacing around the

room, waving his arms, and yelling in Spanish. He noticed that Plaintiff’s eyes

were dilated and that he had a white crusty substance around his lips. Hernandez

was in the room, holding an infant and speaking to Plaintiff in Spanish.

      Unbeknownst to the paramedics or to King, Plaintiff was at the time of their

arrival in a postictal state following a convulsive seizure. An individual in a

postictal state is not fully conscious or aware of his actions, and may be aggressive

and violent. Observing that something was “not right” with Plaintiff, and for their

own safety, the paramedics left the room when King arrived. They also persuaded

Hernandez to leave the room with the infant she was holding.

      King subsequently was alone with Plaintiff in the bedroom for three to four

minutes. Plaintiff was not physically aggressive during this time, but he continued

to pace, wave his hands, and speak loudly in Spanish. Plaintiff called out for his

mother and for his dead grandmother in Cuba. He also began opening drawers as

if he were looking for something. He did not respond to King’s commands in

Spanish to relax (“tranquilo”) and sit down (“sientese”).




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        Pembroke Pines police officer Michelle Fanelli subsequently arrived at the

house in response to a call for backup, and she joined King in the bedroom with

Plaintiff. When Fanelli entered the bedroom, she noticed that Plaintiff was

speaking in Spanish. She radioed for a Spanish speaking officer to assist, and was

told that one was on the way. Then she watched as Plaintiff continued to pace the

room while King spoke to him in a soft voice, trying to convince him to calm

down.

        About a minute after Fanelli arrived, Plaintiff leaned into the bedroom closet

and started moving items, again as if he were looking for something. The officers

thought it was unsafe to allow Plaintiff to search through the closet, and they

gently guided him out of it. Plaintiff offered no resistance. But by this time, King

had determined that Plaintiff was suffering from some kind of psychological

problem and that he should be taken into custody, both to ensure officer safety and

for examination under Florida’s Baker Act. 1

        In an attempt to secure Plaintiff for the above purpose, King approached him

from behind and attached a handcuff to his right wrist. Plaintiff immediately


1
   Florida’s Baker Act requires a police officer to “take a person who appears to meet the criteria
for involuntary examination into custody and deliver the person or have him or her delivered to
the nearest receiving facility for examination.” Fla. Stat. § 394.463(2)(a)(2). The criteria is met
if: (1) there is reason to believe the person has a mental illness, (2) because of his mental illness,
the person either has refused voluntary examination or is unable to determine for himself
whether examination is necessary, and (3) without care or treatment, there is a “real and present
threat of substantial harm” to the person’s well-being or a “substantial likelihood . . . the person
will cause serious bodily harm” to himself or others. Fla. Stat. § 394.463(1).

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began to struggle, flailing his arms such that King was unable to attach the other

handcuff. Plaintiff did not punch King, but he repeatedly swung his arms, with the

loose handcuffs attached to one wrist, in the direction of King’s head. King did not

see the handcuffs make contact, but he felt himself being struck hard on the head

several times with what he thought at the time was Plaintiff’s fist.

      Fanelli fired her taser at Plaintiff in an attempt to bring him under control.

Plaintiff momentarily fell to the floor, but he was back on his feet and struggling

with King within a few seconds. Fanelli fired her taser at Plaintiff again, and then

grabbed Plaintiff and pushed him to the ground. King and Fanelli got on top of

Plaintiff and attempted to restrain him, but Plaintiff was able to free himself from

both officers and run out of the bedroom.

      The officers pursued Plaintiff through the bedroom and to the front door of

the house, where they saw him handling the lock. They stood about ten feet away

from Plaintiff with their guns drawn, gesturing and verbally ordering Plaintiff to

get to the ground. Plaintiff ignored their commands and repeatedly shook his head

“no.” It was at this point that King first realized he was injured and bleeding

profusely from his head.

      Plaintiff continued to ignore the commands given by the officers, and ran

from the front door to the kitchen. Once he was in the kitchen, Plaintiff again

started looking around as if he were trying to find something. Although Plaintiff


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did not open any drawers or grab anything, he was touching and trying to remove

the handcuffs attached to his wrist. King now saw that Plaintiff was covered in

blood, which King believed to be from King’s own head injury. King also noticed

the loose handcuffs hanging from Plaintiff’s wrist, and concluded that he was

bleeding because Plaintiff had hit him in the head or face with them.

      The officers, who were still about ten to twelve feet away from Plaintiff,

continued ordering him to get down on the ground. Suddenly and without

warning, Plaintiff took two steps toward King. When Plaintiff was within a few

seconds of reaching King and as he was advancing, King fired one shot that hit

Plaintiff in the stomach. King did not specifically warn Plaintiff that he was going

to shoot, but Fanelli ordered Plaintiff to get down on the ground immediately

before King fired. King testified that he fired because he feared serious injury or

even death at the hands of Plaintiff, who had already injured him and who was

rapidly moving toward him with loose handcuffs attached to his wrist.

      After Plaintiff was shot, Fanelli opened the front door, which Plaintiff had

locked, and allowed additional officers who had been called for back-up to enter

the house. Those officers noted that Plaintiff had loose handcuffs attached to his

wrist, and gave verbal commands in Spanish for Plaintiff to calm down and stay

back. Although Plaintiff had been shot, and also tased several times, he was

unresponsive to the commands and charged at one of the officers. Plaintiff was


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tased again, but he remained on his feet and continued resisting. Eventually

Plaintiff slipped on the floor, and five or six officers were able to restrain him

within about a minute.

       Both Plaintiff and King were treated briefly on the scene and then taken to

the hospital for further treatment. King received eight staples to close his head

wound. Plaintiff was criminally prosecuted in Broward County Circuit Court on

charges of battery on a law enforcement officer and resisting an officer with

violence. He ultimately was found not guilty on all charges.

II.    Procedural History

       Plaintiff subsequently filed this action asserting a § 1983 excessive force

claim against King and state battery and negligence claims against the City. 2

Defendants filed a motion for summary judgment on all of Plaintiff’s claims,

which the district court granted. The court concluded that King was entitled to

qualified immunity on the excessive force claim because his use of force was

reasonable under the circumstances and thus lawful under the Fourth Amendment.

As King’s use of force was lawful, the court held that it did not constitute a battery

and could not be the basis of a negligence claim against the City.




2
  Plaintiff initially asserted additional claims against King and the City, as well as § 1983 claims
against Fanelli and the Pembroke Pines police chief. Those claims were omitted from Plaintiff’s
Amended Complaint, and are not at issue in this appeal.


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                                  DISCUSSION

I.    Standard of Review

      We review a district court’s order granting summary judgment de novo.

Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th

Cir. 2014). In conducting our review, we construe the evidence and draw all

inferences in favor of the non-moving party, in this case Plaintiff. Id. “Summary

judgment is appropriate when ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(a)).

      Specifically with regard to qualified immunity, 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) (citation and quotation marks omitted). Nevertheless, we view the facts

from Plaintiff’s perspective because the determinative issue on appeal is “not

which facts the parties might be able to prove” but rather whether “certain given

facts” demonstrate a violation of clearly established law. Crenshaw v. Lister, 556

F.3d 1283, 1289 (11th Cir. 2009). See also Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (noting “the importance of drawing inferences in favor of the nonmovant”

in the qualified immunity context).




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II.    Plaintiff’s Excessive Force Claim Against King

       The district court held that King was entitled to qualified immunity on

Plaintiff’s excessive force claim. “Qualified immunity 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 (2002)).

Plaintiff’s excessive force claim arises out of his shooting by King.3 It is

undisputed that King was engaged in a discretionary duty when he shot Plaintiff. It

is thus Plaintiff’s burden to show that qualified immunity is not appropriate. Id. at

995.

       To meet this burden, Plaintiff must satisfy a two-part test. See McCullough,

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

right. Id. Assuming a violation, Plaintiff must show the constitutional right was

clearly established at the time of the incident. Id. Viewing the evidence in the

light most favorable to Plaintiff, neither prong is satisfied here.



3
  Plaintiff argues in his appellate brief that King also violated his Fourth Amendment rights by
“pushing” him out of the closet and attempting to handcuff him. Plaintiff did not raise this
argument in the district court, and in fact he acknowledged in his summary judgment briefing
that King’s “pre-shooting actions d[id] not rise to the level of a constitutional violation.”
Accordingly, we will not address the argument on appeal. See Paylor v. Hartford Fire Ins. Co.,
748 F.3d 1117, 1125 (11th Cir. 2014) (“We have said repeatedly that we will not consider an
issue raised for the first time on appeal.”).

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      A.     Constitutional Violation

      Plaintiff’s excessive force claim is analyzed under the “objective

reasonableness” standard of the Fourth Amendment. Plumhoff v. Rickard, 134 S.

Ct. 2012, 2020 (2014) (citing Graham v. Connor, 490 U.S. 386 (1989) and

Tennessee v. Garner, 471 U.S. 1 (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. (citations and quotation marks omitted). Reasonableness in this context

depends on all the circumstances relevant to an officer’s decision to use force and

the amount of force used. Id. We view the circumstances “from the perspective of

a reasonable officer on the scene.” Id. (citation and quotation marks omitted).

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. (citation

and quotation marks omitted).

      It is reasonable, and therefore constitutionally permissible, for an officer to

use deadly force against a person who poses an imminent threat of serious physical

harm to the officer or others. Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th

Cir. 2005). See also McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1246

(11th Cir. 2003) (finding no constitutional violation where an officer shot a suspect


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he “could reasonably perceive” as posing “an imminent threat of violence to the

officer and other bystanders”). The record unequivocally supports King’s claim

that Plaintiff posed such a threat when he was shot. Plaintiff conceded below that

King was authorized to take him into custody. 4 It is undisputed that Plaintiff

resisted King’s attempt to restrain him for this purpose, such that King was only

able to attach one end of a pair of handcuffs to Plaintiff’s wrist. Plaintiff then

flailed and swung his arms at King’s head, causing a head wound that later

required eight staples to close.

       During his subsequent struggle with the officers, Plaintiff was unresponsive

to all commands and gestures, impervious to the taser, and otherwise unable to be

restrained. A few moments before he shot Plaintiff, King realized that he was

bleeding profusely from a head wound and that his injury likely was caused by

Plaintiff hitting him with the loose handcuffs attached to Plaintiff’s wrist. In the

seconds immediately preceding the shooting, Plaintiff continued to ignore the

officers’ commands and, with the handcuffs still attached to his wrist, he suddenly

advanced to within a few feet of King.

       Given the above undisputed facts, there simply is no question that a

reasonable officer could—and likely would—have perceived Plaintiff as posing an


4
  Plaintiff now argues otherwise, but again this argument was not raised in the district court. We
also note that the undisputed evidence—including testimony from Plaintiff’s police practices
expert and treating physician—shows that King was so authorized.

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imminent threat of serious physical harm. Plaintiff claims there was no indication

he intended to harm King when he advanced toward him, but it was reasonable for

King to conclude otherwise. King was not required to try and divine Plaintiff’s

subjective intent. See McCormick, 333 F.3d at 1246 (noting that the plaintiff’s

“subjective perceptions have little bearing on how a reasonable officer” would

have viewed a situation). Nor was he required to wait and see what might happen

if he allowed Plaintiff to advance further. Long v. Slaton, 508 F.3d 576, 581 (11th

Cir. 2007) (“the law does not require officers in a tense and dangerous situation to

wait until the moment a suspect uses a deadly weapon to act to stop the suspect”).

His decision to use deadly force was reasonable under the circumstances, and thus

in compliance with the Fourth Amendment.

      B.     Clearly Established Law

      Even assuming a constitutional violation, King is entitled to qualified

immunity unless Plaintiff can show that his Fourth Amendment rights were

“clearly established” at the time of the shooting. Plumhoff, 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. “The salient question is whether the state of the law at the time of

an incident provided fair warning to the defendant[] that [his] alleged conduct was




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unconstitutional.” Tolan, 134 S. Ct. at 1866 (quotation marks omitted and

alterations adopted).

      Fair warning is commonly provided by materially similar precedent from the

Supreme Court, this Court, or the highest state court in which the case arose. See

Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012). However, a case directly

on point is not required as long as “existing precedent” placed the “constitutional

question beyond debate.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (citation

and quotation marks omitted). See also Youmans v. Gagnon, 626 F.3d 557, 563

(11th Cir. 2010) (“judicial precedent with materially identical facts is not essential

for the law to be clearly established”).

      As suggested by the above discussion, there is no case law that would have

put King on notice that his conduct was unlawful. To the contrary, he would have

concluded from the most closely analogous case that his use of deadly force was

reasonable and thus constitutional given the situation he faced. See McCormick,

333 F.3d at 1246. In McCormick, a criminal suspect who had not been deterred by

pepper spray, and who continued to ignore all commands, was rapidly advancing

toward the defendant officer with a raised walking stick. As the suspect advanced,

the officer tripped over a parking stone such that he became vulnerable to attack.

The suspect then charged toward the officer, who fired his weapon. We held that

the use of deadly force was constitutional under the circumstances because the


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officer reasonably could have perceived that the suspect posed an imminent and

serious threat. Id. The same principal applies here.

      Plaintiff cites Salvato v. Miley, 790 F.3d 1286 (11th Cir. 2015) and Gilmere

v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985) in support of his excessive force

claim. Salvato was issued after Plaintiff’s shooting and so could not have provided

fair warning. Moreover, the facts in both Salvato and Gilmere are too different

from those in this case to put King on notice that his actions were unlawful. In

Salvato, we held that an officer used excessive force when she shot a suspect who

had formerly resisted arrest, but who was retreating, unarmed, and outside of

striking distance at the time of the shooting. Salvato, 790 F.3d at 1293. In

Gilmere, we held that an officer used excessive force by shooting a suspect who

was engaged in a scuffle with the police, but who could not have seemed very

dangerous given his “small size, intoxicated state, and lack of a weapon.” Gilmere,

774 F.2d at 1502.

      Unlike the suspects in either Salvato or Gilmere, Plaintiff was armed with a

pair of loose handcuffs, which he had already used to inflict a head injury on King,

when he was shot. He had proven himself to be impervious to the taser and

impossible to be restrained, and he was advancing quickly and within a few

seconds of reaching King. Given those material distinctions, neither Salvato nor




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Gilmere is sufficient to meet Plaintiff’s burden to show that his allegedly violated

rights were clearly established.

III.   Plaintiff’s State Claims

       Plaintiff concedes that in order to prevail on his state claims against the City,

he must first show that he was injured by some wrongful act on the part of King.

In his battery claim, Plaintiff seeks to hold the City liable on a respondeat superior

theory for his shooting by King. The City cannot be held liable on such a theory

unless the shooting actually was a battery. Under Florida law, force used by a

police officer during the course of a lawful arrest only constitutes a battery if it was

clearly excessive, an inquiry governed by the reasonableness analysis employed

above. City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. DCA 1996). Our

conclusion that King’s use of force was reasonable under the circumstances thus

precludes Plaintiff’s battery claim against the City.

       In support of his negligence claim, Plaintiff alleges that the City negligently

failed to implement adequate policies and training to minimize the risk that police

officers will use “unnecessary and unreasonable force” in their interaction with

people “in a medical or mental health crisis.” Again, Plaintiff acknowledges that

he must show King acted wrongfully during his encounter with Plaintiff to recover

on this theory. That is, he must show that King’s use of force was unreasonable

under the circumstances. Plaintiff did not argue below, and he does not argue on


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appeal, any theory under which the City could be liable for negligence assuming

King’s use of force was lawful. Thus, as with Plaintiff’s battery claim, our

conclusion that King’s use of force was reasonable bars Plaintiff’s recovery.

                                  CONCLUSION

      For the reasons discussed above, we agree with the district court that King is

entitled to qualified immunity on Plaintiff’s excessive force claim, and that there is

no basis for imposing liability on the City under state law. Accordingly, we

AFFIRM the order of the district court granting summary judgment.




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