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                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-15702
                           ________________________

                       D.C. Docket No. 1:12-cv-04186-ODE



TENISHA FELIO,
Individually,
JOHN E. TOMLINSON,
as Administrator of the Estate of
James Edward Felio (on behalf of Tenisha Felio
and the minor children of James Edward Felio and Tenisha Felio),

                                                                 Plaintiffs-Appellants,

                                       versus

CHRISTOPHER HYATT,
Individually, and in his capacity as a police officer for the
City of Lawrenceville, Georgia,
KARL HYDRICK,
Individually, and in his capacity as a police officer for the
City of Lawrenceville, Georgia,
CITY OF LAWRENCEVILLE POLICE DEPARTMENT,
CITY OF LAWRENCEVILLE, GEORGIA,

                                                                Defendants-Appellees.
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                              ________________________

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

                                     (January 26, 2016)

Before HULL and JILL PRYOR, Circuit Judges, and CONWAY, * District Judge.

PER CURIAM:

       In this 42 U.S.C. § 1983 action, plaintiffs Tenisha Felio, as surviving spouse,

and John Tomlinson, as administrator of the estate of James Felio, appeal the

district court’s grant of summary judgment to the defendants on the federal claims

for excessive use of deadly force and the state law claim for wrongful death.

James Felio, although unarmed, was shot and killed during an interaction with

defendants Officer Christopher Hyatt and Officer Karl Hydrick of the defendant

City of Lawrenceville Police Department. Importantly, the defendant officers

knew that Mr. Felio did not have a weapon on him.

       After review of the record and with the benefit of oral argument, we affirm

as to defendants Officer Hydrick, the City of Lawrenceville, and the City of

Lawrenceville Police Department, and reverse as to Officer Hyatt.




       *
          Honorable Anne C. Conway, United States District Judge for the Middle District of
Florida, sitting by designation.
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                            I. STANDARD OF REVIEW

       We review de novo the district court’s grant of summary judgment and its

determination that defendants Officer Hyatt and Officer Hydrick were entitled to

qualified immunity. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). At

the summary judgment stage, we view the facts in the light most favorable to the

plaintiff and draw all inferences in the plaintiff’s favor. Singletary v. Vargas, 804

F.3d 1174, 1176 n.2 (11th Cir. 2015) (citing Tolan v. Cotton, 572 U.S. ___, ___,

134 S. Ct. 1861, 1866 (2014)). Summary judgment is appropriate only when,

under the plaintiff’s version of the facts, “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).

                          II. FACTUAL BACKGROUND

       Here, during their depositions, Officers Hyatt and Hydrick testified that they

responded to a 911 call reporting a domestic disturbance at a residence on

December 11, 2010. When they arrived, Mr. Felio was asleep in the upstairs

bedroom. Officer Hyatt pulled back the covers and woke Mr. Felio, who was

naked. They gave Mr. Felio a pair of pants and started questioning him. Neither

officer observed a weapon on Mr. Felio’s naked body or in the pants they gave

him.




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       After Mr. Felio refused to respond to the officers’ questions, the officers

attempted to arrest him. However, Mr. Felio resisted, and a struggle ensued on the

bed, during which Officer Hydrick tased Mr. Felio approximately nine times. 1 As

the struggle continued, Mr. Felio and Officer Hydrick ended up rolling off the bed

and wrestling on the floor. Even off the bed, Mr. Felio was on his back, with

Officer Hydrick on top of him.

       According to the officers, Mr. Felio attempted to grab Officer Hydrick’s gun

from the holster on Officer Hydrick’s right side during the wrestling. The

defendants testified that Mr. Felio put his hand on Officer Hydrick’s gun, which

was in the holster, but admit that the firearm at all times remained secured in the

holster. They explained that holsters have a safety mechanism or latch to keep the

gun inside.

       While Mr. Felio and Officer Hydrick struggled, Officer Hyatt feared that

Mr. Felio would ultimately take control of the weapon in Officer Hydrick’s holster.

So Officer Hyatt yelled “lethal” to warn Officer Hydrick that he was going to

shoot. While on the floor on top of Mr. Felio, Officer Hydrick rolled slightly

away, with Mr. Felio still grabbing towards the gun, and Officer Hyatt fatally shot



       1
          Officer Hydrick tased Mr. Felio by pressing the taser directly against Mr. Felio’s skin in
“drive-stun” mode. Officer Hydrick explained that Mr. Felio knocked the cartridge out of the
taser so he was unable to fire “probes.” The taser was operational but appeared to have no effect
on Mr. Felio in “drive-stun” mode. The plaintiffs’ expert opined that tasers override the
subject’s central nervous system when fired, but only cause pain in “drive-stun” mode.
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Mr. Felio in the abdomen. Officer Hyatt’s weapon was less than ten feet from

Mr. Felio when he fired the single shot. 2 The officers testified that it was a

“dynamic” scene and only a couple seconds passed between Mr. Felio’s reaching

for Officer Hydrick’s gun and Officer Hyatt’s firing. The officers admit, however,

that Mr. Felio, once off the bed, remained lying on the floor.

       Tenisha Felio, the spouse, recounted a dramatically different series of

events. Mrs. Felio testified that the struggle was over before she arrived upstairs

and before the shot. She saw Mr. Felio lying still on his back on the floor, with his

hands empty and up in the air to the side of his head. Mrs. Felio paints a picture of

Mr. Felio surrendering. Mr. Felio looked tired and was not moving or speaking.

According to Mrs. Felio, Officer Hydrick was standing in the corner of the

bedroom, while Officer Hyatt was standing at the foot of the bed and had his gun

out.

       Also according to Mrs. Felio, Officer Hyatt was holding the gun with both

hands, but did not have it aimed. Officer Hyatt then removed his right hand from

the gun and waved toward Officer Hydrick, signaling Officer Hydrick to move

back. He returned his right hand to the gun. After seeing this, Mrs. Felio yelled,

“[D]on’t shoot!” In response, Officer Hyatt took his left hand off the gun and


       2
         Officer Hyatt was also armed with pepper spray, a baton, and a taser, and he had
confirmed that the taser was working earlier that day. Officer Hyatt did not consider deploying
these tactics.
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waved her out of the way. Officer Hyatt returned his left hand to the gun, and

using both hands, aimed the gun down at Mr. Felio and shot.

      Mrs. Felio testified that Officer Hyatt had “plenty of time to wave” people

back out of the way and “still shot” Mr. Felio, who was lying on his back on the

floor. She did not disagree when defense counsel characterized her version of the

events as a shooting “in cold blood.” At the time of Officer Hyatt’s shooting,

Mrs. Felio places Officer Hydrick standing over in the corner and not engaged with

Mr. Felio.

      Anita Flowers, Mrs. Felio’s cousin, also witnessed part of the incident and

testified that, seconds before she heard the gunshot, Mr. Felio was lying on the

floor with his torso slightly raised and no one else was on the floor with him.

Officer Hyatt was standing nearby and looked “relaxed,” and she could not see

Officer Hydrick but deduced that he must have been standing. Ms. Flowers left the

bedroom area because she thought the officers were about to handcuff Mr. Felio

and the struggle was over.

      In recounting the plaintiffs’ version of the facts, we recognize that the parties

hotly dispute what occurred at the Felio residence, and that the jury ultimately may

not adopt Mrs. Felio’s and Ms. Flower’s account of the events. But we must

accept their version as true for purposes of our ruling at this juncture. See

Singletary, 804 F.3d at 1176 n.2. And their version has Mr. Felio lying still on his


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back on the floor, unarmed and compliant, with only the pants on that the officers

gave him.

       Mrs. Felio’s and Ms. Flower’s deposition testimony created genuine disputes

of material fact as to the circumstances of the shooting and rendered summary

judgment inappropriate. See Fed. R. Civ. P. 56(a). We briefly explain why

defendant Officer Hyatt is not entitled to judgment as a matter of law on the

plaintiff estate’s § 1983 claim against him. 3 See id.

                                 III. EXCESSIVE FORCE

       The Fourth Amendment prohibits officers from using excessive force when

conducting an arrest. See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865,

1871 (1989). Courts examine the reasonableness of the force in light of the

particular circumstances of the case in order to determine whether the force was

excessive. See id. at 396-97, 109 S. Ct. at 1871-72. This is an objective inquiry

and asks how a reasonable officer at the scene would act. See id. at 396-97, 109 S.

Ct. at 1872.

       Officers acting within their discretionary authority may also seek protection

from suit through qualified immunity. See Lee, 284 F.3d at 1193-94. An officer is




       3
         As discussed later, the plaintiff estate brings the § 1983 claim for the alleged violation
of Mr. Felio’s constitutional rights. Mrs. Felio, as surviving spouse, is the proper plaintiff on the
wrongful death action under state law.
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protected by qualified immunity unless his conduct violates clearly established

federal law. See id.

      Once an officer establishes that he was acting within his discretionary

authority, this Court applies a two-part test to determine whether the plaintiff has

shown “that qualified immunity is not appropriate.” Id. at 1194. First, we ask

whether the officer violated a federal constitutional or statutory right. Id. at 1193-

94. Then, we determine whether the right was clearly established such that the

officer would have been “on notice” that his conduct was unlawful. Lewis v. City

of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). A right can be clearly

established by: (1) “case law with indistinguishable facts”; (2) “a broad statement

of principle within the Constitution, statute, or case law”; or (3) “conduct so

egregious that a constitutional right was clearly violated.” Id. at 1291-92.

      Drawing all inferences in the plaintiff estate’s favor, as we must, we are

confronted with a scene in which Mr. Felio, unarmed, was lying still on his back

on the floor with his hands up by his head to surrender when Officer Hyatt shot

him. See Singletary, 804 F.3d at 1176 n.2. He was not resisting the officers or

moving. He had no weapon and was complying with the officers’ authority by

lying still on his back. Importantly, in this case the officers knew Mr. Felio had no

weapon, and no officer contends that he thought he saw a weapon or an object that

might be used as a weapon.


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      Furthermore, based on Mrs. Felio’s evidence, a jury could reasonably find

that Officer Hydrick was completely disengaged from the preceding struggle and

standing away from Mr. Felio in the corner of the room. Enough time even passed

between Officer Hydrick disengaging and the shot that Officer Hyatt was able to

wave to Officer Hydrick, wave to Mrs. Felio in response to her plea, and aim his

gun. Under her version of the facts, a jury could reasonably find that the struggle

had stopped, and that Mr. Felio was unarmed, subdued, and lying flat on his back

while the officers were standing away from him.

      We have held that an officer used excessive force when he shot an individual

who previously violently resisted arrest, but at the time of the shot was “retreating,

apparently unarmed, and outside of striking distance.” Salvato v. Miley, 790 F.3d

1286, 1293-94 (11th Cir. 2015); see also Edwards v. Shanley, 666 F.3d 1289, 1296

(11th Cir. 2012) (stating that it was “[c]ritical” to this Court’s holding of excessive

force that the officer “increased the force applied at the same time the threat

presented by [the suspect] decreased,” and the suspect was “laying [sic] prone with

his hands exposed and begging to surrender”); Gilmere v. City of Atlanta, 774 F.2d

1495, 1496-97, 1502 (11th Cir. 1985) (en banc) (upholding the district court’s

judgment that there was a Fourth Amendment violation when an officer shot a

drunken suspect—who earlier was reported to have a gun—after the suspect

resisted arrest by “flailing,” running away, and engaging in a “scuffle”), abrogated


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on other grounds by Graham, 490 U.S. at 395, 109 S. Ct. at 1871; cf. Perez v.

Suszczynski, ___ F.3d ___, ___, No. 14-13619, slip op. at 2-3, 5 (11th Cir. Jan. 12,

2016) (holding that an officer was not entitled to qualified immunity when the

officer shot the decedent in the back while the decedent was “compliant and

prostrate on his stomach, with his hands behind his back,” and another officer had

already thrown the decedent’s gun out of reach).

      We recognize that the struggle occurred inside of a single bedroom. But

even if the defendants could argue that Mr. Felio still could have gotten up from

the floor and thus remained within striking distance of Officer Hydrick, the

individualized circumstances of this case would lead us to the same result. Our

standard focuses on whether the “suspect poses a threat of serious physical harm”

and the immediacy of that harm. See Morton v. Kirkwood, 707 F.3d 1276, 1281

(11th Cir. 2013). Mrs. Felio’s testimony suggested that the situation had stabilized

before Officer Hyatt fired his gun, and that the room had been still for enough time

that a reasonable officer would have recognized that Mr. Felio had stopped

resisting. With Mr. Felio subdued, and Officer Hydrick’s holstered gun no longer

close to Mr. Felio’s hands, which a jury could find were near the floor, there was

not an immediate threat. See id.

      Having determined that the plaintiffs’ facts showed a Fourth Amendment

violation, we also conclude that, at this juncture, the district court erred by granting


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Officer Hyatt qualified immunity. The Supreme Court held long ago that deadly

force is not justified when the suspect is unarmed and poses no immediate threat to

the law enforcement officers at the scene. See Tennessee v. Garner, 471 U.S. 1,

11, 105 S. Ct. 1694, 1701 (1985). Moreover, shooting a compliant individual is

“conduct [that] lies so obviously at the very core of what the Fourth Amendment

prohibits that the unlawfulness of the conduct [should have been] readily

apparent.” See Lee, 284 F.3d at 1199. Under Mrs. Felio’s version of the facts,

Officer Hyatt’s actions violated a clearly established right, and qualified immunity

does not apply. See Lewis, 561 F.3d at 1291-92.

           Therefore, we reverse the district court’s grant of summary judgment to

Officer Hyatt on the plaintiff estate’s § 1983 claim for excessive force. “Our

holding today does not mean [Officer Hyatt] is entirely precluded from enjoying

qualified immunity; there are numerous disputed issues of material fact, which a

fact-finder may ultimately resolve in his favor.” Perez, ___ F.3d at ___, slip op. at

16-17. Our holding is only that a trial is required for a jury to find the relevant

facts. 4




           4
         We affirm the district court’s grant of summary judgment as to defendant Officer
Hydrick. The plaintiffs abandoned their claim that Officer Hydrick used excessive force in
tasing Mr. Felio. Furthermore, Officer Hydrick did not fire the gun or tell Officer Hyatt to shoot,
and the plaintiffs did not argue in the district court that Officer Hydrick failed to intervene and
prevent Officer Hyatt from shooting.
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                                IV. MUNICIPAL LIABILITY

       As to the defendant City of Lawrenceville, the defendants point out that

there is no respondeat superior liability for Officer Hyatt’s shooting. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036 (1978) (“[A]

municipality cannot be held liable under § 1983 on a respondeat superior theory.”).

The defendants further argue that, even if a constitutional violation is shown, the

plaintiffs have not presented any evidence to demonstrate that the City had a

custom or policy of excessive force or inadequate training or supervision. See

Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir. 1998) (stating that a

municipality is liable for its failure to train or supervise its employees only when

the “municipality knew of a need to train and/or supervise in a particular area and

the municipality made a deliberate choice not to take any action” as a matter of

official policy). In the reply brief, the plaintiffs do not cite any evidence or argue

this issue.

       In any event, the plaintiffs failed to put forth evidence of an official policy of

deliberately foregoing needed police training and supervision. Thus, we affirm the

grant of summary judgment as to the defendant City of Lawrenceville. 5




       5
        We also note that the plaintiffs abandoned their claims against the City of Lawrenceville
Police Department and the federal claim for unlawful arrest.
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                             V. STATE LAW CLAIM

A.    Georgia’s Wrongful Death Statute

      Turning to the state law claims, we note that the plaintiffs expressly

abandoned nearly all of their claims, advancing only what they call a “claim of

wrongful death pursuant to the Georgia Wrongful Death statute”:

      Appellants abandon the following state law claims against the
      Appellees: battery, intentional infliction of emotional distress,
      negligent infliction of emotional distress, false arrest, and false
      imprisonment under Title 51 of the Official Code of Georgia
      Annotated, as well as abuse during the course of an arrest in violation
      of Art. I, § I, ¶ 17 of the Georgia Constitution. Appellants intend on
      proceeding under the claim of wrongful death pursuant to the Georgia
      Wrongful Death statute.

The plaintiffs’ briefs on appeal describe that claim as “the pendant state law

claim[] for wrongful death.” The plaintiffs argue that, contrary to the district

court’s finding, the defendant officers are not entitled to official immunity from the

wrongful death claim under Georgia law because they acted with actual malice or

intent to cause injury.

      Although Mrs. Felio is not the administrator of her husband’s estate, she

(and not the estate) may pursue a state law claim for the wrongful death of her

husband under Georgia law. Ga. Code Ann. § 51-4-2(a). The Georgia Wrongful

Death statute provides that “[t]he surviving spouse . . . may recover for the

homicide of the spouse . . . the full value of the life of the decedent, as shown by

the evidence.” Id. The statute states that “[h]omicide includes all cases in which
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the death of a human being results from a crime, from criminal or other negligence,

or from property which has been defectively manufactured, whether or not as the

result of negligence.” Id. § 51-4-1(2) (emphasis added) (quotation marks omitted).

Accordingly, a surviving spouse will succeed on a wrongful death claim if she can

establish that the defendant negligently caused her husband’s death. See, e.g.,

Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693 (Ga. 1982) (upholding a jury award

in a wrongful death case in which the decedent’s children, who had survivorship

rights, established that a mental facility was negligent in caring for the patient who

killed their mother); see also Mowell v. Marks, 603 S.E.2d 702, 704 (Ga. Ct. App.

2004) (“[A] suit for wrongful death . . . is derivative to the decedent’s right of

action. A survivor cannot recover for the decedent’s wrongful death if the

decedent could not have recovered in his or her own right.” (alteration in original)

(quotation marks omitted)).

      The defendant officers argue that Mrs. Felio has not adequately pled the

wrongful death claim. We disagree. Mrs. Felio’s complaint referred to both

negligence and Title 51 of the Georgia Code, which contains the Wrongful Death

Statute. Her brief on appeal, quoted above, did not list the negligence claim as

abandoned, and the defendant officers acknowledge this fact in their brief on

appeal. Given the record as a whole, it is clear that Mrs. Felio’s negligence claim,

which she alleged in the complaint and carried through to this appeal, is her


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wrongful death claim. After all, the Wrongful Death Statute is the state statute that

gives her a cause of action to recover damages for the officers’ allegedly negligent

roles in causing her husband’s death. See Ga. Code Ann. § 51-4-2(a) (creating the

wrongful death cause of action for the surviving spouse).

B.    Official Immunity

      Even if Mrs. Felio has a wrongful death claim for negligence, the defendant

officers argue that there is no material fact issue as to negligence and that, in any

event, they are entitled to official immunity.

      Under Georgia law, a public officer is not personally liable for a

discretionary act unless the officer “acted with actual malice or actual intent to

cause injury.” Valades v. Uslu, 689 S.E.2d 338, 342-43 (Ga. Ct. App. 2009)

(quotation marks omitted); see Ga. Const. art. I, § II, para. IX(d) (stating that

officers “may be liable for injuries and damages if they act with actual malice or

with actual intent to cause injury in the performance of their official functions”).

This standard requires courts to “inquire into [the official’s] subjective intent.”

Jordan v. Mosley, 487 F.3d 1350, 1357 (11th Cir. 2007) (describing official

immunity under Georgia law). It asks whether the defendant had a wicked motive,

or intended to cause harm to the plaintiff, rather than just intending to do the act

that resulted in the plaintiff’s injury. See Kidd v. Coates, 518 S.E.2d 124, 125 (Ga.

1999).


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      This Court recently explained the demanding standard for “actual malice” in

a case raising claims of trespass and malicious prosecution, where no bodily injury

was involved:

      Actual malice is a demanding standard: it requires an officer to act
      with “a deliberate intention to do a wrongful act.” Adams v.
      Hazelwood, 520 S.E.2d 896, 898 (Ga. 1999). True, a jury can infer
      actual malice based on an officer’s conduct. See Lagroon v. Lawson,
      759 S.E.2d 878, 883 (Ga. Ct. App. 2014). But unreasonable conduct
      does not support such an inference. See Bashir v. Rockdale Cty., 445
      F.3d 1323, 1333 (11th Cir. 2006); Marshall v. Browning, 712 S.E.2d
      71, 75 (Ga. Ct. App. 2011); Anderson v. Cobb, 573 S.E.2d 417, 419
      (Ga. Ct. App. 2002). Even recklessly illegal conduct does not support
      an inference of actual malice. See Murphy v. Bajjani, 647 S.E.2d 54,
      60 (Ga. 2007); Daley v. Clark, 638 S.E.2d 376, 386 (Ga. Ct. App.
      2006).

Black v. Wigington, ___ F.3d ___, ___, No. 15-10848, slip op. at 9 (11th Cir. Jan.

22, 2016).

      “Actual intent to cause injury” is also a demanding standard. However, “[i]n

the context of a shooting by a police officer, the Supreme Court of Georgia has

held that if the officer shot ‘intentionally and without justification, then [he] acted

solely with the tortious actual intent to cause injury’ and would not be protected by

official immunity.” Porter v. Massarelli, 692 S.E.2d 722, 726 (Ga. Ct. App. 2010)

(quoting Kidd, 518 S.E.2d at 125); see also DeKalb Cty. v. Bailey, 736 S.E.2d 121,

124-26 (Ga. Ct. App. 2012) (holding that, at the summary judgment stage, an

officer was not entitled to official immunity as a matter of law because there was

evidence that “he was not justified in shooting [the suspect] when [the suspect] was
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running away from him,” even taking into account the fact that the suspect

appeared to have had a weapon at the start of the chase).

       Viewing this record evidence in the light most favorable to the plaintiffs, a

jury could find that Officer Hyatt intentionally shot Mr. Felio after the struggle

ended and at a time when Mr. Felio was lying on the floor, unarmed and

compliant. Under Georgia law, this record creates material issues of fact not only

as to whether Officer Hyatt was negligent, but also as to whether he acted with

“actual intent to cause injury” to Mr. Felio. See Valades, 689 S.E.2d at 343. Thus,

under Georgia law, the district court erred at this juncture in granting Officer Hyatt

summary judgment and official immunity as a matter of law. 6

                                    VI. CONCLUSION

       We affirm the grant of summary judgment in favor of defendants Officer

Hydrick, the City of Lawrenceville, and the City of Lawrenceville Police

Department. We vacate the judgment in favor of defendant Officer Hyatt and

remand the case to the district court for a trial as to him.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




       6
        We affirm the district court’s grant of official immunity as to Officer Hydrick for the
same reasons as stated previously in footnote 4.
                                                17
