                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT                          FILED
                                                                    U.S. COURT OF APPEALS
                              ________________________                ELEVENTH CIRCUIT
                                                                           02/16/2000
                                                                       THOMAS K. KAHN
                                     No. 98-3171                            CLERK
                             ________________________
                          D. C. Docket No. 97-305-CIV-T-23E

CUMI KELLY WOOD, individually, and as parent and next of kin of Clark Mitchell
Thomas, Deceased, and as Personal Representative of the Estate of Clark Mitchell
Thomas,

                                                                         Plaintiff-Appellee,

                                           versus

CITY OF LAKELAND, FL, a municipality, et al.,

                                                                    Defendants-Appellants.

                              ________________________

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

                                   (February 16, 2000)

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Jr., Senior District
Judge.

_________________
*Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle District of Georgia,
sitting by designation.
OWENS, Jr., Senior District Judge:

      Plaintiff Cumi Kelly Wood as the mother of her deceased son, Clark Mitchell

Thomas, filed a complaint1 alleging 42 U.S.C. § 1983 claims against the City of

Lakeland, Florida and its Police Officer Tye Darron Thompson in which she

contended that Officer Thompson, in violation of her deceased son’s constitutional

rights, unnecessarily shot and killed him. Officer Thompson moved for summary

judgment, contending that qualified immunity shields him from individual liability for

the constitutional claims asserted against him, citing Harlow v. Fitzgerald, 457 U.S.

800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 393 (1982). A United States magistrate

judge denied Officer Thompson’s motion for qualified immunity, finding that genuine

issues of material fact prevent the granting of Officer Thompson’s motion. Officer

Thompson filed this interlocutory appeal in which he contends the magistrate judge

erred in finding the existence of a genuine issue of material fact.

      The denial of summary judgment for a qualified immunity claim is immediately

appealable as a final decision under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472

U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Our review in

determining entitlement to qualified immunity is de novo. See Pickens v. Hollowell,


      1
      Plaintiff’s complaint alleged various federal and state claims. Since this appeal
concerns only Count One and 42 U.S.C. § 1983, the other claims will not be
summarized.
                                           2
59 F.3d 1203, 1205 (11th Cir. 1995). In reviewing denials of summary judgment

based on qualified immunity, our inquiry is limited to deciding if the facts, viewed in

the plaintiff’s favor, show a genuine dispute on facts material to the qualified

immunity analysis. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.

1993)(citing Daniel v. Taylor, 808 F.2d 1401, 1402 (11th Cir. 1986)).

      The following portion of the magistrate judge’s findings of undisputed fact are

not contested by Officer Thompson, the City of Lakeland or plaintiff Wood:

                  The undisputed facts in this cause establish that on
             February 12, 1995, Officer Tye Thompson shot and killed
             Clark Mitchell Thomas (hereinafter “Mr. Thomas”) at a
             residence in Lakeland, Florida. The Lakeland Police
             Department had been summoned to the residence by
             members of Mr. Thomas’s family, who reported that he was
             injuring himself and threatening suicide. When the police
             were unable to talk Mr. Thomas into exiting from the
             residence, a rescue/entry team consisting of five officers
             was assembled with the intention of securing Mr. Thomas
             for commitment under the “Baker Act.” By the entry plan,
             Officer Smith was to enter first, carrying a ballistic shield.
             He was following by Officer Tye Thompson, who was
             designated to be the shooter in the event a firearm was
             necessary. These officers were followed by two officers
             who were to effect the rescue of Mr. Thomas. The final
             officer to enter the room was Sergeant Link, who carried a
             gas canister in the event it was necessary to use gas to
             subdue Mr. Thomas. Upon entering the residence, the
             officers observed evidence of blood. In the rear bedroom
             where Mr. Thomas was located, entry was made by Officer
             Smith kicking open the door. Mr. Thomas was observed to
             be sitting on a dresser at the end of a bed. The officers
             observed that his arms were covered with blood and that he

                                           3
            was clenching some type of object, which he held to the
            right side of his neck. He yelled to the officers to get out of
            the room. The officers identified themselves as Lakeland
            police officers and ordered Mr. Thomas to drop the knife
            numerous times. When Mr. Thomas declined to do so and
            thereafter slid off the dresser, he was shot three times in the
            chest by Officer Thompson, from a distance of
            approximately eight feet.

but the remainder of the magistrate judge’s findings are contested by Officer

Thompson and the City of Lakeland, to wit:

                Mr. Thomas’s actions immediately before the shooting
            are dramatically in dispute. By the officers’ versions, Mr.
            Thomas was shot because he posed a threat of injury to the
            officers. By their version, when he slid off the dresser, he
            moved toward them with the knife extended in a
            threatening manner. By Plaintiff’s version, the decedent
            posed no immediate threat to any of the officers and in fact
            was shot while his hand was still in a position threatening
            injury to himself. This conclusion is derived chiefly from
            the autopsy report of the county medical examiner. By his
            matching of bullet wounds, the physical evidence suggests
            that Mr. Thomas’s right arm was flexed and somewhat
            raised when the bullets passed through the arm into his
            chest. Such forensic evidence materially contradicts the
            officers’ versions by which the decedent had lowered the
            knife and had extended it toward the officers in a
            threatening manner. Plaintiff also relies upon the expert
            opinion of a Hillsborough County, Florida sheriff’s
            detective who opines that from a review of the shooting
            scene, the decedent’s path to the officers was obstructed at
            the time of the shooting and in any event, the entry and exit
            wounds reveal that he was making no threatening gesture
            to the officers at the time he was shot.



                                          4
      Reviewed de novo this record indicates that the only persons who were in the

bedroom and in position to see or hear the events that resulted in the death of Mr.

Thomas were Officer Thompson and other officers of the City of Lakeland Police

Department. Neither the plaintiff mother nor any other family member was in position

to see or hear what happened in the bedroom, and they do not contend they were.

With due respect for the views of the magistrate judge, the autopsy report also

reviewed de novo is not evidence indicating that the deceased did or did not pose a

threat to any of the police officers at the time of the shooting. Likewise, the after-the-

fact opinion of a Hillsborough County sheriff’s detective that the entry and exit

wounds reveal the deceased was making no threatening gesture to the officers at the

time he was shot, is not supported by or based upon any evidence in the record. See,

Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 93-94 (1st Cir. 1993). Concerned with

these findings of the magistrate judge, this court at oral argument asked the parties to

submit supplemental briefs identifying evidence in the record that could possibly

show the deceased was not the aggressor and was not moving towards the officers

when he was shot. Plaintiff Wood’s counsel did not identify any such evidence.

       Qualified immunity protects government officials who have acted within their

discretionary authority from civil trials and other litigation burdens “if their conduct

violates no ‘clearly established statutory or constitutional rights of which a reasonable


                                            5
person would have known.’” Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149

(11th Cir. 1994)(en banc)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738, 73 L.Ed.2d 396 (1982)). The qualified immunity defense “embodies an

‘objective reasonableness’ standard, giving a government agent the benefit of the

doubt,” provided that the conduct was not “so obviously illegal in the light of then-

existing law that only an official who was incompetent or who knowingly was

violating the law would have committed” the acts. Crosby v. Paulk, 187 F.3d 1339,

1344 (11th Cir. 1999)(quoting GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359,

1366 (11th Cir. 1998)). Because “we have ‘rejected the inquiry into [an official’s]

state of mind in favor of a wholly objective standard,’” the government actor’s intent

and motivation are insignificant in determining entitlement to qualified immunity. Id.

at 1344. (quoting Flores v. Satz, 137 F.3d 1275, 1277 n.4 (11th Cir. 1998)(per

curiam)(alteration in original)(citation omitted)).

      For a constitutional right to be clearly established, it “must be sufficiently clear

[so] that a reasonable official would understand that what he is doing violates that

right.” Id. at 1345. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 3039, 97 L.Ed.2d 523 (1987)). General rules, propositions, or abstractions, such

as acting with probable cause, do not determine qualified immunity. Id. (citing

Lassiter, 28 F.3d at 1150). Instead, the circumstances that confronted the government


                                           6
actor must have been “materially similar” to prior precedent to constitute clearly

established law because “public officials are not obligated to be creative or

imaginative in drawing analogies from previously decided cases.” Id. (citations

omitted). “For qualified immunity to be surrendered, pre-existing law must dictate,

that is, truly compel (not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent that what defendant

is doing violates federal law in the circumstances.” Id.

      The plaintiff opposing summary judgment has the burden of showing that a

genuine dispute on a material issue of fact exists. Post v. City of Ft. Lauderdale, 7

F.3d 1552, 1557 (11th Cir. 1993)(citing Hutton, 919 F.2d at 1536). Conclusory

allegations such as those we have rejected or evidence setting forth legal conclusions

are insufficient to meet the plaintiff’s burden. Id. (citing Bennett v. Parker, 898 F.2d

1530, 1534 (11th Cir. 1990)).

      The proper test for qualified immunity as set out by this court is:

      The objective nature of qualified immunity defines what fact issues are
      material for summary judgment purposes. To avoid summary judgment
      it is not enough for a plaintiff to produce evidence, which – if believed
      (for summary judgment its truth is assumed) – would allow a fact-finder
      to find just that the government-agent defendant was, in reality, wrong
      about the facts on which the defendant acted. Instead, to defeat summary
      judgment because of a dispute of material fact, a plaintiff facing
      qualified immunity must produce evidence that would allow a fact-finder
      to find that no reasonable person in the defendant’s position could have
      thought the facts were such that they justified defendant’s acts. See Sims

                                           7
      v. Metropolitan Dade County, 972 F.2d 1230, 1234-35 (11th Cir.
      1992)(illustrating what kinds of fact issues are material to qualified
      immunity).

Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993).

      The Supreme Court, in Tennessee v. Garner, 471 U.S. 1 (1985), held that the

use of deadly force is warranted only if the suspect takes action to present an

immediate risk of serious harm to others or the officer. This Court held that the

decision in Garner provided a bright line that established when an officer may use

deadly force in apprehending a suspect. Harrell v. Decatur County, GA, 22 F.3d

1570, 1573 (11th Cir. 1994). Where the suspect is not a fleeing felon and poses no

immediate threat to the officer or others, the use of deadly force is a violation of the

suspect’s Fourth Amendment Rights and, therefore, unconstitutional. Id. In Florida,

the use of deadly force is governed by statute and, as noted by the parties, the statute

is part of the Lakeland Police Department’s policies. That statute provides, “any

person is justified in using deadly force “only if he... reasonably believes that such

force is necessary to prevent imminent death or great bodily harm to himself... or

another....” Fla. Stat. ch. 776.012.

      In sum, in order for the plaintiffs in this case to survive summary judgment on

the basis of qualified immunity they must produce evidence that would allow a fact-

finder to find that no reasonable person in the defendant’s position could have thought


                                           8
the facts were such that deadly force was necessary to prevent imminent death or great

bodily harm to himself or another. With this standard in mind, we examine the

circumstances under which defendant Tye Darron Thompson acted in view of the

clearly established law at that time to decide if his conduct was objectively reasonable.

      The undisputed facts, as known to the defendant at the time of the incident, are

that the officers were faced with confronting a known drug abuser, who had

threatened to commit suicide, and who had attempted to commit suicide in the past.

When they arrived at the scene, the officers were informed that Thomas had already

cut his wrists. Upon entering the residence, the officers observed blood on the

sidewalk outside, as well as throughout various rooms on the inside of the house.

Ultimately locating Thomas in a small bedroom of the residence, the officers

identified themselves as officers of the Lakeland Police Department. Thomas was

repeatedly told to drop his weapon. Thomas, however, failed to drop the object

clenched in his fist, and instead, hurled loud obscenities towards the five officers.

Thomas eventually “slid off the dresser real quick with his momentum forward”

toward the officers, box-cutter still in hand. Thomas came within six to eight feet of

Officer Smith. Officer Thompson fired three shots in rapid succession mortally

wounding Thomas.




                                           9
      Viewing the evidence in the light most favorable to plaintiffs, a fact finder

could not find that no reasonable person in the defendant’s position could have

thought the facts were such that they justified defendant’s acts. To the contrary,

Defendant Thompson acted as a reasonable officer would in light of the facts and

circumstances facing him at the time. Defendant Thompson made a reasonable split-

second judgment call, in light of Thomas’ volatile, emotional, and aggressive state,

to use deadly force in order to prevent imminent death or great bodily harm to himself

or another. Defendant Thompson is therefore entitled to qualified immunity. The

judgment of the lower court denying summary judgment on the issue of qualified

immunity is therefore REVERSED.




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