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                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                    No. 16-10614
                                Non-Argument Calendar
                              ________________________

                      D.C. Docket No. 9:14-cv-80403-DTKH



LYDIA ADAMS,
as personal representative of the estate of Seth Adams,
for the benefit of Lydia Adams,
RICHARD ADAMS,
surviving parent,
SETH ADAMS,
the estate,

                                                                Plaintiffs - Appellees,

versus

SHERIFF OF PALM BEACH COUNTY, FLORIDA,
Ric L. Bradshaw, in his official capacity,

                                                                           Defendant,

MICHAEL M. CUSTER,
in his individual capacity,

                                                              Defendant - Appellant.
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                           ________________________

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

                               (November 22, 2016)

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

PER CURIAM:

      On the night of May 16, 2012, Defendant Michael Custer, while conducting

an undercover surveillance operation for the Palm Beach County Sheriff’s Office,

parked his unmarked police vehicle in the parking lot of a plant nursery. Seth

Adams, an employee of the nursery who resided on the premises, confronted

Custer about his presence there. Custer fatally shot Adams after an alleged scuffle.

Plaintiff Lydia Adams (“Plaintiff”), Seth’s mother, sued Custer in his individual

capacity under 42 U.S.C § 1983, alleging that he violated Adams’ Fourth

Amendment rights by using excessive force against Adams. Custer asserted

qualified immunity as a defense and moved for summary judgment. The district

court denied Custer’s motion, and this appeal followed. Finding that there is a

genuine dispute of material fact regarding the circumstances of the shooting, we

AFFIRM the district court’s denial of summary judgment.




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                                I. BACKGROUND

A.    Factual Background

      There are two versions of the facts in this case. Before the district court,

Defendant offered a specific chronological recitation of the events that led to his

shooting Adams. Plaintiff is unable to offer, with any specificity, a differing

summary of the events because the only other eyewitness to the shooting was the

victim of that shooting, Seth Adams, and he is dead. Nonetheless, Plaintiff

disagrees that the events could have occurred as Defendant described them, and

she produced forensic evidence as well as the testimony of other witnesses that call

into question the truthfulness of Defendant’s explanation. We set out first the

Defendant’s version of the facts. Then, we set out the evidence offered by Plaintiff

that contradicts Defendant’s testimony, along with the impact of that evidence on

the credibility of Defendant’s account.

      At the time of the incident giving rise to this case, Defendant Michael Custer

(“Defendant”) was a sergeant with the Palm Beach County Sheriff’s Office

(PBSO). He was assigned to PBSO’s Tactical Unit (TAC), where his

responsibilities included performing undercover surveillance operations. On the

night of the shooting, he was on duty participating in such an operation. Due to the

nature of the operation, Defendant was driving an unmarked police SUV and

dressed in plain clothes. Although he was wearing a TAC tee-shirt under his plain


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gray button-up shirt and a badge clipped to his belt, Defendant wore his button-up

shirt untucked, which may have concealed the badge on his belt during his

encounter with Adams.

      Seth Adams was an employee of A One Stop Garden Shop, which owned

the parking lot where the shooting happened. Adams also lived on the premises in

a residence behind the nursery, which was adjacent to the parking lot. That night,

Adams was wearing a work shirt with A One Stop Garden Shop’s company logo

on the front and back.

      Shortly after 11:00 p.m., Defendant backed his vehicle into the parking lot of

A One Stop Garden Shop, which was closed. A sign that read “NO PARKING 6

PM TO 6 AM VEHICLES WILL BE TOWED” was posted in the parking lot,

though Defendant claims to not have seen the sign. Defendant chose this parking

spot to take advantage of the darkness there, and remained in his vehicle with the

engine running and the lights off.

      Around 11:40 p.m., Seth Adams drove his pickup truck into the parking lot

and parked parallel to Defendant’s vehicle, facing the other direction. The two

drivers faced each other from 10 to 15 feet away, each now with his window down.

Defendant stated that Adams immediately began “screaming” and demanding,

“Who the f*** are you? What the f*** are you doing here?” Defendant identified

himself as a law enforcement officer and showed Adams his ID, but Adams exited


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his vehicle empty-handed and rapidly approached Defendant’s vehicle. Defendant

then exited his vehicle and tried again to show his ID to Adams and explain his

presence there. Defendant did not use any device to illuminate his ID, and both he

and Adams were behind the headlights of Adams’ truck.

      Defendant claims that Adams “sat there listening to [him]” for a “couple of

seconds,” but then suddenly grabbed Defendant by the throat. Defendant says he

broke free from Adams’ grip on his neck, although the two continued to grapple

briefly. Defendant was finally able to extricate himself after hitting Adams with a

chest strike, which created some space between himself and Adams. Defendant

then drew his firearm, pointed it at Adams, and ordered him to the ground,

declaring Adams to be under arrest. Adams, still empty-handed, did not heed the

instructions, but walked back and forth in front of Defendant, “hovering” about

five feet away. Defendant backed towards his vehicle to retrieve a radio from the

front seat, which he used to request backup. The standoff continued, and Adams

then ran towards the open door of his truck, not heeding Defendant’s orders to

stop, to stay away from the truck, and to get on the ground. Defendant then kicked

the open door of Adams’ truck shut, pinning Adams between the door and the

vehicle’s frame.

      The two struggled there briefly. In the statement in which he first recounted

the “pinning” incident, Defendant said he held Adams pinned in the door frame


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while Adams was “moving around . . . trying to get out of the door” and screaming

profanities “the whole time.” Defendant said he perceived that Adams “was trying

to get a weapon,” and was “convinced he had obtained a weapon” when he “saw

[Adams’] arms coming around.” Defendant then fired four rounds at Adams.

      In a later statement, Defendant elaborated on the above account, claiming he

saw Adams “fishing around” the interior of the truck while he was pinned in the

doorframe. In this account, Defendant says he held his firearm in his left hand as

he wrapped his right arm around Adams’ head and neck in an effort to pull Adams

away from the truck. Adams suddenly yelled, “F*** you, as loud as he could, and

came spinning out of the truck.” At this point, Defendant says he fired his first

shot, and then fired three more as he backed away from Adams.

      In short, the account offered by Defendant indicates that prior to the

shooting, a profane and angry Adams had struggled violently with Defendant and

tried to choke Defendant around the neck. Running away from Defendant, Adams

tried to get into his truck. Defendant blocked his exit from the truck, pinning

Adams inside the truck with the truck’s door pressed against him. But Adams,

who appeared to be making an effort to obtain a weapon inside the truck, suddenly

spun out of the truck and toward Defendant, who was standing at the truck’s door,

and loudly shouted F*** you. At that point, fearing for his life, Defendant shot

Adams. Adams died two hours later.


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       Plaintiff disputes the truthfulness of Defendant’s account and offered

evidence that the district court concluded to have contradicted and substantially

undermined Defendant’s account of the events. First, Defendant stated that Adams

had grabbed Defendant’s neck and throat “as hard as a man can grab you.” Yet,

there was no redness or bruising on Defendant’s neck. Nor did the DNA swab

conclusively reveal any DNA from Adams.

       Key to Defendant’s ultimate explanation for shooting Adams was his

assertion that Adams had made his way back to his truck at the point at which he

spun back on Defendant, standing right next to the door of the truck. As noted,

Defendant thought Adams might have gotten hold of a gun inside the truck. Yet,

as pointed out in the district court’s order, Plaintiff produced forensic evidence

supporting a conclusion that Adams was actually shot, not inside or near the open

door of the truck, but instead as he was standing at the rear of the truck. From this

the district court concluded: “[Defendant’s’] claim that he fired his first shot after

Adams—standing pinned between the driver’s side door and vehicle frame . . .—

suddenly broke free from [Defendant’s] chokehold and spun around shouting

obscenities, is thus at complete odds with forensic, blood, and ballistic

evidence . . . .”

       Further undermining the credibility of Defendant’s statement regarding the

above incident as the event precipitating Defendant’s decision to shoot is the fact


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that Defendant failed to mention this event immediately after the shooting, instead

explaining that he shot Adams because the latter tried to choke Defendant. It was

only in a later account given in the presence of his attorney that Defendant

mentioned this second incident inside Adams’ truck. Further, critical to the

accuracy of Defendant’s recounting of the above conduct by Adams is the fact that

Adams was allegedly pinned inside his truck with its door open. Yet, investigation

immediately after the shooting showed the door of the truck to be closed.

      As to one more detail in Defendant’s first description of the initial

encounter, Defendant stated that Adams had been hostile and aggressive from the

outset and that after Defendant identified himself as a law enforcement officer,

Adams kept screaming and “acting like a lunatic.” But another law enforcement

officer from Defendant’s team had been driving by and observed the initial

encounter between Defendant and Adams. This officer, Agent Drummond,

indicated that he saw Defendant get out of his vehicle, while Adams was standing

between the two vehicles, and it appeared that Defendant was talking to Adams,

with nothing appearing to be wrong. Less than 90 seconds later, Agent Drummond

heard on his radio another agent broadcast a warning that shots had been heard in

the area, and moments later he heard Defendant’s call for back-up. However,

according to Custer, he had initially called for back-up before any shots were fired,




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and had later issued a second call for back-up in which he noted that he had shot a

man who had attacked him.

      Taking the above evidence proffered by Plaintiff in the light most favorable

to Plaintiff, the district court concluded that one could infer that Adams was not

shot as described by Defendant (that is, there was no effort by Adams to choke

Defendant and no assault initiated by Adams from inside his truck), but instead

that he was shot at the back of his truck by Defendant, who had no reason to

believe that Adams was armed or otherwise posed any danger.

B.    Procedural History

      Plaintiff sued both Ric Bradshaw in his official capacity as Sheriff of Palm

Beach County and Defendant in his individual capacity under 42 U.S.C. § 1983.

Plaintiff alleged that Defendant violated Adams’ Fourth Amendment rights by

shooting him, and his Fourteenth Amendment due process rights by failing to

administer first aid afterwards. Sheriff Bradshaw was sued under a Monell theory

of supervisory liability. Plaintiff also brought wrongful death claims against both

defendants under Florida state law.

      The district court granted summary judgment in favor of Defendant on the

due process claim and Bradshaw on the supervisory liability claim, and partial

summary judgment for both defendants on the state law wrongful death claim. The

district court denied Defendant’s motion for summary judgement on qualified


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immunity grounds for the Fourth Amendment claim. Defendant appeals the

district court’s denial of his motion.

                                  II. DISCUSSION

A.    Jurisdiction

      As a preliminary matter, Plaintiff argues that this Court lacks jurisdiction to

consider Defendant’s appeal because the appeal merely challenges the district

court’s determination that material facts are genuinely in dispute. While it is true

that an interlocutory appeal is not available for such a challenge, see Moniz v. City

of Fort Lauderdale, 145 F.3d 1278, 1280 (11th Cir. 1998), Plaintiff

mischaracterizes Defendant’s appeal. Defendant contends on appeal that his

actions did not violate a clearly-established constitutional right. This contention

raises legal issues, giving us jurisdiction to hear an interlocutory appeal. Plumhoff

v. Rickard, 134 S. Ct. 2012, 2019 (2014). In addition, we have jurisdiction to hear

“those evidentiary sufficiency issues that are part and parcel of the core qualified

immunity issues, i.e., the legal issues.” Cottrell v. Caldwell, 85 F.3d 1480, 1486

(11th Cir. 1996) (internal footnote omitted). In sum, we have jurisdiction over this

appeal because it raises the legal question of whether, after construing facts in

favor of Plaintiff, Defendant violated clearly established constitutional law. Id. at

1485 (noting the Court’s interlocutory jurisdiction “in qualified immunity cases

where the denial is based even in part on a disputed issue of law”).


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B.    Standard of Review

      We review de novo a district court’s disposition of a summary judgment

motion based on qualified immunity and apply the same legal standards as the

district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We

resolve any factual disputes in the plaintiff’s favor and then decide whether that

version of the facts entitles the defendant to qualified immunity. Id.; see also

Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“Our qualified-immunity cases

illustrate the importance of drawing inferences in favor of the nonmovant . . . .”).

Consequently, 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) (quoting Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002), and Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3

(11th Cir. 2000)). Nevertheless, we view the facts from the plaintiff’s perspective

because the determinative issue on appeal is “not which facts the parties might be

able to prove,” but whether “certain given facts” demonstrate a violation of clearly

established law. Crenshaw v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009).

C.    Whether Defendant Was Entitled to Qualified Immunity

      1.     Standard

      Qualified immunity completely “protects government officials performing

discretionary functions from suits in their individual capacities unless their conduct


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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)). To obtain qualified

immunity, a public official must first show that he was engaged in a discretionary

duty when the allegedly wrongful act occurred. Id. at 995. Here, there is no

dispute that Defendant was acting within his discretionary authority when he shot

Adams. The burden thus shifts to Plaintiff to show that qualified immunity is not

appropriate. Id.

      Plaintiff must satisfy a two-part test to meet her burden. McCullough, 559

F.3d at 1205. First, she must show that Defendant’s conduct violated a

constitutional right. Id. Assuming a violation occurred, Plaintiff must also show

that the right was clearly established at the time of the incident. Id. Viewing the

facts in the light most favorable to Plaintiff, we conclude that both prongs are

satisfied here.

      2.     Was there a constitutional violation?

      Plaintiff’s deadly-force claim is analyzed under the objective reasonableness

standard of the Fourth Amendment. Plumhoff, 134 S. Ct. at 2020 (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


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countervailing governmental interests at stake.” Id. (internal citations 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. Jean–Baptiste v.

Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). We view the circumstances “from

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

vision of hindsight.’” Plumhoff, 134 S. Ct. at 2020 (quoting Graham, 490 U.S. at

396–97). 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.

(internal quotation marks omitted).

      When considering whether a use of deadly force was reasonable, relevant

circumstances include “the seriousness of the crime, whether the suspect poses an

immediate danger to the officer or others, whether the suspect resisted or attempted

to evade arrest, and the feasibility of providing a warning before employing deadly

force.” Jean-Baptiste, 627 F.3d at 821. We also have observed that an officer may

constitutionally use deadly force when 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 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.



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McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329–30

(11th Cir. 2003)).

         Construing the facts in Plaintiff’s favor, Adams had neither tried to choke

nor otherwise assaulted Defendant. Defendant had no reason to believe that

Adams was armed or had attempted to obtain a weapon. Nevertheless, for reasons

not made clear, he shot Adams to death as the latter was standing near the rear of

his truck. The question then is whether it was reasonable for Defendant to use

deadly force against Adams under these circumstances. The answer, obviously, is

that it was not reasonable. While an officer may use deadly force in self-defense if

an individual poses an immediate threat of serious physical harm, “[a] police

officer may not seize an unarmed, nondangerous [person] by shooting him dead.”

Garner, 471 U.S. at 11. Thus, under the facts as construed above, Defendant

violated Adams’ Fourth Amendment rights through his unreasonable use of deadly

force.

         3.    Did the law clearly establish that shooting Adams under the above
               circumstances was in violation of his Fourth Amendment rights?

         Even assuming a constitutional violation, Defendant is entitled to qualified

immunity unless Plaintiff can show that Adams’ 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
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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 unconstitutional.” Tolan, 134 S. Ct. at 1866 (internal quotation marks

omitted).

      Fair warning is most 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

“judicial precedent with materially identical facts is not essential for the law to be

clearly established.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010).

Authoritative judicial decisions may “establish broad principles of law” that are

clearly applicable to the conduct at issue, and it may also be obvious from “explicit

statutory or constitutional statements” that certain conduct is unconstitutional.

Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208–09 (11th Cir. 2007); see also

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (“We do not require a case directly

on point, but existing precedent must have placed the . . . constitutional question

beyond debate.” (internal quotation marks omitted)).

      At the time Defendant shot Adams, the law was clearly established that the

use of deadly force against an unarmed, non-threatening, and non-fleeing

individual is unconstitutional. See, e.g., Garner, 471 U.S. at 11 (“Where the

suspect poses no immediate threat to the officer and no threat to others, the harm


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resulting from failing to apprehend him does not justify the use of deadly force to

do so.”); Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005)

(intentionally shooting a non-threatening individual in the head at close range with

a non-lethal round was clearly-established excessive force); Lundgren v.

McDaniel, 814 F.2d 600, 603 (11th Cir. 1987) (“[S]hooting a suspected felon who

was apparently neither fleeing nor threatening the officers or others was—even in

July, 1983—an unreasonable seizure and clearly violated [F]ourth [A]mendment

law.”) (internal footnote omitted); Pruitt v. City of Montgomery, 771 F.2d 1475

(11th Cir. 1985) (shooting an unarmed burglary suspect who posed no risk of harm

to police or others was unconstitutional).

      The law being clearly established, Plaintiff has shown that both prongs of

the qualified immunity test are met. Accordingly, we affirm the district court’s

denial of summary judgment to Defendant on his qualified immunity defense.

AFFIRMED.




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