              Case: 14-14183     Date Filed: 10/26/2016   Page: 1 of 35


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-14183
                            ________________________

                    D.C. Docket No. 3:11-cv-00061-DHB-BKE



LENA WILLIAMS,

                                                               Plaintiff-Appellee,


                                        versus

JEFFERY DEAL,
individually and in his official capacity
as a Police Officer of the City of East Dublin,
                                                               Defendant-Appellant,

WILLIAM LUECKE,
individually and in his official capacity as
Chief of Police of the City of East Dublin, et al,

                                                               Defendants.
                            ________________________

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

                                 (October 26, 2016)
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Before JORDAN and FAY, Circuit Judges, and WALKER, * District Judge.

PER CURIAM:

       This unfortunate case concerns a police officer’s use of force resulting in a

death. While sitting in his patrol car, the police officer saw another car roll through

a stop sign and then drive away. Several minutes later, the police officer caught up

with the other car as it parked in a driveway. The police officer turned on his

emergency lights as he pulled into the driveway behind the other car. When the

driver got out of his car, the police officer ordered him to get back inside and then

tried to force the driver back into the car. The driver resisted with force. During the

ensuing struggle, the driver grabbed at the police officer’s gun and punched the of-

ficer in the head. The police officer broke free, got several feet away, drew and

aimed his gun at the driver. Notwithstanding the officer’s show of force, the driver

advanced towards the police officer while raising his arms. The police officer shot

and killed the driver. The police officer claims that he’s entitled to qualified im-

munity from the plaintiff’s federal-law claims.

       The district court concluded that the police officer hadn’t satisfied a prelimi-

nary requirement of qualified immunity—to be acting within the scope of his au-

thority at the time of the incident—because state law requires that a police officer

have certain annual training to use the power of arrest, and apparently this officer

       *
          Honorable Mark E. Walker, United States District Judge for the Northern District of
Florida, sitting by designation.

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hadn’t received that training during the previous year. The police officer discov-

ered the problem, told his superiors, received the training during the next year, and

was told that the proper authority considered the problem fixed and that he could

now exercise the power of arrest. But apparently the problem wasn’t actually fixed

at the time of the incident because the police officer hadn’t requested and received

a waiver excusing his failure to complete training during the previous year.

       We conclude that the police officer didn’t violate the Fourth Amendment at

all. Because of this conclusion, we needn’t engage in a full-blown qualified im-

munity analysis (which would include determining whether the officer was acting

within the scope of his discretionary authority and whether any rights at issue were

clearly established). See Woodruff v. Mason, 542 F.3d 545, 559 n.17 (7th Cir.

2008); Helms v. Zubaty, 495 F.3d 252, 259 (6th Cir. 2007); Santoni v. Potter, 369

F.3d 594, 602 (1st Cir. 2004); Myers v. Klevenhagen, 97 F.3d 91, 96 (5th Cir.

1996).1

       The police officer also argues that he’s entitled to official immunity from the

plaintiff’s state-law claims because he performed discretionary acts without actual

malice. Because plaintiff failed to respond to this argument, we find plaintiff

waived any contrary arguments.
1
 We too have ruled—albeit in unpublished opinions—that an exhaustive qualified immunity
analysis is unnecessary if there is no constitutional violation. See Taylor v. Freeman, 447 F.
App’x 78, 81 (11th Cir. 2011); Fowler v. Chattooga Cnty., Ga., 307 F. App’x 363, 366 n.3 (11th
Cir. 2009); Hilton v. Sec’y for the Dep’t of Corrs., 170 F. App’x 600, 604 n.4 (11th Cir. 2005);
Mongeau v. Jacksonville Sheriff’s Office, 197 F. App’x 847, 852 (11th Cir. 2005).

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       We reverse the parts of the district court’s order denying qualified and offi-

cial immunity and remand for judgment to be entered in favor of the police officer.

                                                I

       We start with the procedural background of the case. The plaintiff Lena Wil-

liams is the mother of Melvin Williams and the administrator of his estate. The de-

fendant is Officer Jeffery Deal of the City of East Dublin Police Department

(EDPD). The plaintiff asserts that Officer Deal unlawfully arrested Mr. Williams

and used excessive force in carrying out the arrest. The plaintiff brings claims

against Officer Deal under 42 U.S.C. §1983 and the Fourth Amendment, along

with various claims under state law. The district court granted summary judgment

for Officer Deal on the unlawful-arrest claim and a state-law claim and entered

judgment as to those claims. The district court also denied qualified immunity on

the excessive-force claim and official immunity on the remaining state-law claims.

Officer Deal appeals the denial of qualified immunity and official immunity. 2

       The denial of summary judgment based on qualified or official immunity is

subject to full review without deference to the district court’s legal conclusions.

See, e.g., Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). A court views the

evidence in the light most favorable to the nonmoving party. A court also draws


       2
         The plaintiff also sued the City of East Dublin and the police chief. The district court
granted summary judgment for the police chief and the city on all claims against those parties.
The plaintiff didn’t appeal the district court’s adverse judgment.

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reasonable inferences the same way.


                                         II

      Officer Deal argues that he is entitled to qualified immunity because he was

acting within the scope of his discretionary authority and because his actions did

not violate clearly established law in the particular circumstances which he faced.

See Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). If the de-

fendant shows that he was acting within the scope of his discretionary authority,

the plaintiff must show (a) a violation of a constitutional right; and (b) that the

right was clearly established at the time of the defendant’s alleged misconduct.

Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts have discretion to decide which

of these “should be addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

                                         A

      A case involving a police officer’s use of deadly force may present a special

concern on summary judgment. “[T]he witness most likely to contradict [the police

officer’s] story—the person shot dead—is unable to testify.” O’Bert ex rel. Estate

of O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (quotation omitted). In such cir-

cumstances it is “wise to examine all the evidence to determine whether [the police

officer’s] story is consistent with other known facts.” Maravilla v. United States,

60 F.3d 1230, 1233–34 (7th Cir. 1995). A reviewing court “undertake[s] a fairly


                                         5
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critical assessment of the forensic evidence, the officer’s original reports or state-

ments and the opinions of experts to decide whether the officer’s testimony could

reasonably be rejected at a trial.” Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.

1994). But if the circumstantial evidence doesn’t contradict a police officer’s direct

testimony, conjecture cannot create a genuine issue of material fact. See Rodriguez

v. Farrell, 280 F.3d 1341, 1353 n.20 (11th Cir. 2002).

      For the most part we agree with the district court’s assessment of the undis-

puted facts. Where we disagree, we explain why.

                                          B

      The morning of May 14, 2010, found Jeffery Deal on duty as a police officer

for the City of East Dublin, Georgia. He was parked in a marked police car at the

Amba Food Mart on Buckeye Road in East Dublin. From there, Officer Deal saw

Melvin Williams run a stop sign a block to the south at the intersection of Boat

Ramp Road and Buckeye Road.

      As in many small towns, these two were not complete strangers. Officer

Deal had, in his words, “[p]rior knowledge and prior dealings” concerning Mr.

Williams and the EDPD. In their first meeting, a year and a half before the shoot-

ing, Officer Deal responded to a report of a fight between Mr. Williams and a girl-

friend. Officer Deal saw marks on Mr. Williams’s girlfriend but did not see a fight.

According to Officer Deal, Mr. Williams’s girlfriend didn’t want to press charges,



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so Officer Deal did not arrest him. Mr. Williams’s family told Officer Deal that

Williams had recently completed a ten-year prison sentence.

       Officer Deal had also pulled over Mr. Williams several times without any

physical altercation. Officer Deal said that EDPD had “locked up” Mr. Williams’s

brother “not too long ago.” Officer Deal thought that the brother had called Mr.

Williams with a cell phone from the back of a police car to have Mr. Williams dis-

card cocaine. Before the shooting, Officer Deal had seen Mr. Williams’s criminal

record and knew that he was a convicted felon. Officer Deal thought that Mr. Wil-

liams had been imprisoned for armed robbery or aggravated assault.

       Officer Deal was told of other dealings between Mr. Williams and the

EDPD. Some days before the shooting, one Sergeant Tim Duvall told Officer Deal

that Mr. Williams had pistol-whipped and beat up a girlfriend. Sergeant Duvall also

told Officer Deal that Mr. Williams made threats towards Sergeant Duvall. Mr.

Williams told a mutual friend that the next time Sergeant Duvall pulled over Mr.

Williams or came to his house “it would be the last time,” or words to that effect.

Finally, Officer Deal said that “his chief” and another officer told him they were

looking into Mr. Williams for trafficking stolen TVs and stolen guns. 3


       3
         In his deposition, the police chief said that he didn’t have documentation of an investi-
gation of Mr. Williams for trafficking in firearms or an arrest for the pistol-whipping incident.
Citing the police chief’s testimony, the district court said that “[w]ithout further corroboration of
these incidents at this time, this particular claimed background knowledge was not considered in
resolving the motion.” “[W]e accept Defendant’s factual assertions when they are based on un-
disputed evidence and have not been contradicted by Plaintiff.” E.g., Singletary v. Vargas, 804

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         Turning back to May 14, 2010, Officer Deal saw Mr. Williams drive over a

white traffic line, look towards Officer Deal, and then slam on his brakes, sliding

into the intersecting roadway. Mr. Williams’s car then turned south on Buckeye

Road and sped away. Officer Deal pursued, thinking that Mr. Williams was trying

to elude him. But he didn’t turn on his emergency lights and sirens or report his ac-

tions.

         Mr. Williams drove one block south on Buckeye Road and then turned left

onto Daley Street. When Officer Deal, following behind, reached Daley Street he

saw Mr. Williams turning right onto Marion Street. Instead of following, Officer

Deal continued south on Buckeye Road on a then-parallel but ultimately intersect-

ing route. Both reached Roberson Lane simultaneously. Officer Deal continued

south and turned right on Derriso Lane to gain a better view, as it is up on a hill.

         The police car’s video camera captured some of the incident. At 9:06:01

a.m., Officer Deal turned around, drove back towards Buckeye Road, and turned




F.3d 1174, 1176 n.2 (11th Cir. 2015). Because the police chief’s testimony doesn’t contradict Of-
ficer Deal’s testimony, this information should be considered. The relevant fact isn’t whether Mr.
Williams assaulted his girlfriend. It’s whether Sergeant Duvall said that to Officer Deal. Like-
wise, Officer Deal said that the chief and another officer told him that they suspected Mr. Wil-
liams of stealing guns and other property. The police chief’s testimony that he lacked documenta-
tion of an investigation doesn’t contradict Officer Deal’s testimony regarding what he was told
about Mr. Williams at the time of the shooting.



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north onto Buckeye Road. While turning north, he saw Mr. Williams turning into a

driveway about 100 yards away. 4




       Officer Deal drove toward Mr. Williams and turned on his emergency lights

as the cruiser pulled into the driveway behind Mr. Williams’s car. 5 The map below

illustrates the area and the routes of each car 6:




       4
         The route that Mr. Williams took from Marion Street to 415 Buckeye Road is unclear.
       5
          When the emergency lights were activated, the police car’s dashboard camera captured
audio and visual images of the incident. As a result of its programming, the saved video portion
begins thirty seconds before activation of the emergency lights.
       6
          This Court takes judicial notice of the geography. See, e.g., United States v. Proch, 637
F.3d 1262, 1266 n.1 (11th Cir. 2011). The illustration is included to better present the record evi-
dence and give a frame of reference. Of course this does not establish position or view with spec-
ificity. The blue lines indicate Officer Deal’s movements. The red lines indicate Mr. Williams’s
movements.

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      Before he was able to radio in the traffic stop, Officer Deal saw Mr. Wil-

liams remove his seatbelt, move around inside the car, and abruptly jump out of the

car as though to flee. Officer Deal immediately exited the police car and ran to-

wards Mr. Williams’s car. As he moved towards Mr. Williams’s car, Officer Deal’s

right hand was on his firearm holster.




                                         10
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At about this point, Officer Deal said loudly “Get in the car. Don’t get out of the

car on a traffic stop.”




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       The initial contact between Officer Deal and Mr. Williams is off-camera. In

the brief moment after the command, rather than obeying the command, Mr. Wil-

liams continued towards Officer Deal. Officer Deal grabbed Mr. Williams and tried

to push him back into the car.7

       At that point, Officer Deal and Mr. Williams got “tied up” and a vigorous

off-camera fight ensued. They fought standing and wrestled on the ground, but

eventually got back on their feet. During this fight, Mr. Williams hit Officer Deal

in the head several times with a closed fist and Officer Deal responded with some

knee strikes. Officer Deal tried to get out his pepper spray but was preoccupied

blocking Mr. Williams. During the off-camera part of the fight, Mr. Williams says

twice “What is wrong with you?” As the district court recounted, Mr. Williams

“grabbed Deal’s firearm holster and made several violent jerking motions. Deal

struggled to hold on to the gun, and the holster unsnapped.” ECF No. 190, at 9 (ci-

tation omitted).



       7
          The district court noted that Officer Deal said on some occasions that Mr. Williams was
the first to initiate physical contact. In his deposition, Officer Deal said “[w]hen Mr. Williams
come out of the vehicle in an aggressive manner chest to chest with me, not knowing what he
was fixing to do, I did attempt to place him back in the vehicle.” Officer Deal elaborated: “I be-
lieve he come chest to chest with me and made contact with me first. Or we possibly could have
done it simultaneously. If I had my hand out and he come into me, even though my hand was out,
he would have made contact with me first by coming into me.” In his affidavit, Officer Deal says
Mr. Williams “immediately started fighting with me when I reached the car.” Officer Deal also
wrote a thorough two-page incident report. Following a Georgia Bureau of Investigation (GBI)
request, the police chief told Officer Deal to shorten the statement. Someone else wrote half of
the narrative of the existing incident report. The district court was correct to proceed under the
version of facts most favorable to the plaintiff, as we do.

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      After about twenty seconds out of view, Officer Deal and Mr. Williams re-

turn to the view of the dash camera. The district court aptly described this point in

the incident: “At that time, Deal was slightly hunched over with both hands on the

holster-side of his body near his firearm, and Williams appeared to be pulling or

grabbing at Deal around his upper torso.”




Somehow, Officer Deal knocked Mr. Williams’s hands off the firearm. Mr. Wil-

liams pulled back his right hand and punched Officer Deal on the back of his head

or neck with his right hand.




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      After that punch, Officer Deal backed away, out of view of the police car’s

camera. Officer Deal drew his gun and pointed it at Mr. Williams.




After a momentary pause, Mr. Williams advanced towards Officer Deal while rais-

ing his hands.




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From a distance of about six feet, Officer Deal fired one shot at Mr. Williams. The

bullet hit Mr. Williams and caused his death. The time between the physical sepa-

ration and the gunshot was about two seconds.

         In addition to the gunshot wound, an autopsy revealed that Mr. Williams had

minor scrapes and bruises on his fingers, wrist, legs, and cheek, consistent with

minor blunt-force injuries sustained during the fight. After the fight, Officer Deal’s

uniform was dirty, torn on one pant leg, and a lapel pin had been partially ripped

off. Officer Deal had scrapes and bruises on his left hand, wrist, and above his left

eye. 8

                                               C

         The plaintiff argues that there are three different ways how Officer Deal vio-

lated Mr. Williams’s rights under the Fourth Amendment. First, the plaintiff asserts

that the stop of Mr. Williams’s car was unconstitutional and that violation was the

proximate cause of his death. Second, the plaintiff asserts that an initial use of ex-

cessive force—Officer Deal grabbing and pushing Mr. Williams back into the

car—was the proximate cause of Mr. Williams’s death. Third, the plaintiff asserts

that the shooting itself was objectively unreasonable.



         8
         During its inquiry, the GBI found a glass pipe in the center console ashtray of Officer
Deal’s patrol car. Officer Deal could not explain its presence, but the vehicle was the day-shift
vehicle—not his usual patrol car. Officer Deal offered to provide the GBI with hair, blood, and
urine samples. The GBI collected a urine sample, which tested negative.

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      The plaintiff hasn’t met her burden on any of these theories. Whatever ar-

guments support the unlawful-arrest claim are no basis to affirm the district court’s

denial of qualified immunity on the distinct excessive-force claim. The act of grab-

bing Mr. Williams and trying to push him back into the car was not an unconstitu-

tional use of excessive force. The ultimate use of deadly force was objectively rea-

sonable under the Fourth Amendment because Officer Deal had probable cause to

believe that Mr. Williams posed a threat of serious physical harm. The plaintiff has

thus shown no violation of the Fourth Amendment.

                                         1

      The plaintiff’s first theory is that Officer Deal violated Mr. Williams’s

Fourth Amendment rights by arresting him without probable cause and that this

constitutional violation led to his death. The plaintiff points to Jackson v. Sauls,

206 F.3d 1156 (11th Cir. 2000), where we found the evidence “sufficient to create

jury issues regarding whether Defendants’ illegal stop proximately caused” a death.

Id. at 1168. Jackson explained that “[f]or damages to be proximately caused by a

constitutional tort, a plaintiff must show that, except for that constitutional tort,

such injuries and damages would not have occurred and further that such injuries

and damages were the reasonably foreseeable consequences of the tortious acts or

omissions in issue.” Id.




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       The district court found no genuine dispute of material fact as to the stop-

sign violation. It concluded that Officer Deal didn’t violate the Fourth Amendment

by initiating the traffic stop. The district court granted Officer Deal’s summary

judgment motion on the unlawful-arrest claim and entered judgment on that claim.

The plaintiff didn’t cross-appeal that judgment. 9 But the plaintiff urges affirmance

of the district court’s order based on the theory that, as an allegedly unconstitution-

al stop, it might yet serve as the proximate cause of Mr. Williams’s death.

       It’s true that “[a]n appellee who does not take a cross-appeal may ‘urge in

support of a decree any matter appearing before the record, although his argument

may involve an attack upon the reasoning of the lower court.’” Jennings v. Ste-

phens, 135 S. Ct. 793, 798 (2015) (quoting United States v. Am. Railway Express

Co., 265 U.S. 425, 435 (1924)). “But an appellee who does not cross-appeal may

not ‘attack the decree with a view either to enlarging his own rights thereunder or

of lessening the rights of his adversary.’” Id.

       The argument that summary judgment should not have been granted on the

unlawful-arrest claim can’t serve as an alternative basis for affirmance as to an ex-

cessive-force claim. In this circuit, there is a fork in the road based on the lawful-

ness of a seizure. If the seizure itself violates the Fourth Amendment, then the re-


       9
         The district court’s decision to enter judgment on that claim allowed the plaintiff to take
a cross appeal at the same time as the defendant’s interlocutory appeal of the denial of qualified
immunity on the excessive-force claim.

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coverable damages “include damages suffered because of the use of force in effect-

ing” it and any excessive-force claim is subsumed in the unlawful-arrest claim.

Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995). This is so “because if a stop

or arrest is illegal, then there is no basis for any threat or any use of force, and an

excessive force claim would always arise but only collaterally from the illegal stop

or arrest claim.” Jackson, 206 F.3d at 1171. But excessive force used during a legal

stop gives rise to a discrete excessive-force claim. Id.

      If the district court was wrong about the unlawful-arrest claim, that’s no ba-

sis to affirm the denial of qualified immunity on a discrete excessive-force claim. It

is simply not an argument “supporting the judgment under review.” See Jackson v.

Humphrey, 776 F.3d 1232, 1243 (11th Cir. 2015) (Hinkle, J., concurring). And af-

firming on that basis would effectively lessen the rights of the defendant under the

final judgment entered but not appealed.

      In any event, we see no reason to disagree with the district court’s conclu-

sion that the stop was supported by probable cause. The record shows that Officer

Deal observed Mr. Williams run a stop sign. The plaintiff has produced no contrary

evidence to show a genuine dispute of material fact. See Fed. R. Civ. P. 56(c).10

Accordingly, we conclude that even if the unlawful-arrest claim could support af-

firmance of the district court’s order, the plaintiff would still not have shown a vio-

       10
         Because the seizure was supported by probable cause, we needn’t decide whether Mr.
Williams’s death could be a reasonably foreseeable consequence of the stop.

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lation of clearly established law.

                                          2

      The plaintiff concentrates her arguments on the second theory, which is that

under Jackson v. Sauls, an initial use of unconstitutionally excessive force—

Officer Deal grabbing and attempting to push Mr. Williams back into the car—was

the proximate cause of Mr. Williams’s death. The plaintiff points us to a line of

cases from the Ninth Circuit generally holding that “where an officer intentionally

or recklessly provokes a violent confrontation, if the provocation is an independent

Fourth Amendment violation, he may be held liable for his otherwise defensive use

of deadly force.” Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).

      The district court declined to rule on whether this initial contact was a sepa-

rate constitutional violation, instead considering the incident as a whole. ECF No.

190, at 24 n.22. But the plaintiff asserted as much below and on appeal. So we ad-

dress it here. Even if we applied the Ninth Circuit’s rule, the plaintiff’s second the-

ory fails because there was no unconstitutional provocation.

      The use of excessive force in carrying out an arrest is a violation of the

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). The “objective

reasonableness” standard applies in determining whether the use of force was ex-

cessive. Penley v. Eslinger, 605 F.3d 843, 849–50 (11th Cir. 2010). The force used

by a police officer in carrying out an arrest must be reasonably proportionate to the



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need for that force. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002). Although

the extent of any injury may be relevant, the core judicial inquiry in a Fourth

Amendment excessive-force case is the nature of the force. See Saunders v. Duke,

766 F.3d 1262, 1270 (11th Cir. 2014) (citing Wilkins v. Gaddy, 559 U.S. 34, 38–39

(2010)).

      We usually don’t “second-guess the decisions made by police officers in the

field.” Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir. 2003). “The reasonableness

of a particular use of force must be judged from the perspective of a reasonable of-

ficer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 397 (quotation omitted). “The calculus of reasonableness must embody al-

lowance for the fact that police officers are often forced 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. at 396–97.

The relevant factors include “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. Apply-

ing these factors, we conclude that this use of force was objectively reasonable;

that is, reasonably proportionate under the circumstances and not excessive.

      The first factor moves the needle towards Officer Deal only a little, and only

because “the right to make an arrest or investigatory stop necessarily carries with it



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the right to use some degree of physical coercion or threat thereof to effect it.”

Graham, 490 U.S. at 396 (emphasis added). The offense originally justifying a sei-

zure—running a stop sign—is a misdemeanor under state law. See Ga. Code Ann.

§40-6-20(a). This justified an arrest. See Atwater v. City of Lago Vista, 532 U.S.

318, 354 (2001). The government has “a significant interest in enforcing the law on

its own terms, rather than on terms set by the arrestee.” Buckley v. Haddock, 292 F.

App’x 791, 794 (11th Cir. 2008). This is so “regardless of the severity of the al-

leged offense.” Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (holding

that throwing an arrestee to the ground and placing handcuffs was not excessive for

the crime of illegally standing in intersection). We’ve rejected before—and we re-

ject again—the implicit suggestion that the “force applied by [a police officer ef-

fecting an arrest] was illegally disproportionate because no force was acceptable”

in these circumstances. See id. And, even where the offense is minor, “a prudent

officer must consider the possibility of a violent response from the subject.” See

Singletary v. Vargas, 804 F.3d 1147, 1181 n.10 (11th Cir. 2015). This is especially

true given the facts about Mr. Williams as they appeared to this officer.

      That’s why the second factor—whether the suspect poses an immediate

threat to the safety of the officers or others—also weighs in favor of Officer Deal.

Here Officer Deal had reason to believe—based on prior dealings with Mr. Wil-

liams and information received from other police officers—that Mr. Williams



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might be dangerous. For example, we noted before that Mr. Williams told a mutual

friend that the next time another EDPD officer pulled him over or came to his

house “it would be the last time,” or words to that effect. Likewise, Officer Deal

had been told that Mr. Williams was suspected of stealing guns. That sort of infor-

mation bears on whether Mr. Williams posed an immediate threat to the police of-

ficer’s safety and on the reasonableness of the attempt to push Mr. Williams back

into the car. See, e.g., MacMillan v. Roddenberry, 432 F. App’x 890, 896–97 (11th

Cir. 2011). To be sure, there is no evidence that Mr. Williams brandished a weapon.

But the force used is more likely justified if the officer has reason to think that the

person to be seized might be armed.

      The third factor—whether the individual is actively resisting arrest or at-

tempting to evade arrest by flight—also weighs in favor of Officer Deal. Perhaps

Mr. Williams wasn’t trying to elude Officer Deal. But the necessarily fact-specific

inquiry takes into account facts as they reasonably appeared to the police officer. If

an officer reasonably, but mistakenly, believes that one of the factors relevant to the

merits of the constitutional excessive-force claim is present, the officer is justified

in using more force than in fact was needed. See Saucier, 533 U.S. at 205. Here,

Officer Deal had reason to believe that Mr. Williams was attempting to elude him

after the traffic stop—speeding away from the scene and taking a circuitous route

using side streets to reach an ultimate destination. It was also reasonable to con-



                                          24
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clude that Mr. Williams got out of the car quickly to flee. And while there was only

a brief moment between the verbal command and the initial contact, during that pe-

riod Mr. Williams kept coming towards Officer Deal.

      The plaintiff asserts that Mr. Williams didn’t have a reasonable amount of

time to comply with Officer Deal’s order to get back in the car, and this makes the

force used objectively unreasonable. The plaintiff relies on the “general principle

that if officers use deadly force because of fear created by their own unprovoked

physical violence against a non-hostile citizen, those officers may be liable under

the Fourth Amendment.” Answer Brief, at 56. The plaintiff cites three of our cases

in support of this proposition, but each has an important difference.

      The first case the plaintiff relies on is Gilmere v. City of Atlanta, 774 F.2d

1495 (11th Cir. 1985) (en banc). There the police received a report that after a near

traffic accident, a drunk driver threatened the other driver with a gun. Id. at 1496–

97. The police went to the drunk driver’s home, escorted him outside by force, and

began beating him about the head. Id. at 1497. The man wrestled free and a police

officer shot and killed him. Id. Following a bench trial, the district court found that

the beating occurred with little or no provocation and that the blows were not de-

livered in a good faith effort to control the man, but rather out of irritation at his

initial resistance. Id. at 1501. It also found that the officer’s belief that his life was

in danger was not objectively reasonable and could not justify the killing. Id. On



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appeal, we concluded that the beating was unwarranted and “the unwarranted

shooting which directly resulted from his efforts to escape the officer’s further

physical abuse” gave grounds for relief under the Fourth Amendment. Id. at 1502.

      The second case the plaintiff relies upon is Mercado v. City of Orlando, 407

F.3d 1152 (11th Cir. 2005). There the plaintiff was threatening suicide with a knife

and the police responded. Id. at 1154. The police ordered the plaintiff to drop the

knife. Id. The plaintiff had made no threatening moves or statements towards the

officers or anyone else. Id. Thirty seconds or so later—and without giving a warn-

ing—a police officer used deadly force. Id. at 1155. We noted that the plaintiff

“[a]rguably . . . did not have time to obey [the police officer’s] order.” Id. at 1157.

We reasoned that all of the Graham factors weighed in favor of the plaintiff, who

had not committed a crime, resisted arrest, or posed a threat to the police officers.

Id.

      The third case is Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011).

There a police officer overheard the plaintiff clubgoer criticize the police in pro-

fane terms for arresting another clubgoer. Id. at 1288. The police officer confronted

the plaintiff and drew a taser. Id. The plaintiff took one step back and raised his

hands. The police officer shot the plaintiff with the taser. Id. When the plaintiff did

not fall to the ground, a second police officer shot the plaintiff with a taser. Id. And

when the plaintiff finally went to the ground, the second police officer put his knee



                                          26
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in the plaintiff’s back and grinded his contact taser into the plaintiff’s neck. Id. We

reasoned that previous cases such as Vinyard v. Wilson, 311 F.3d 1340 (11th Cir.

2002), “establish that unprovoked force against a non-hostile and non-violent sus-

pect who has not disobeyed instructions violates that suspect’s rights under the

Fourth Amendment.” Fils, 647 F.3d at 1289. The plaintiff wasn’t violent, didn’t

disobey an order, and didn’t resist arrest. Id. at 1290.

      None of those three cases leads to the conclusion that Officer Deal’s initial

use of force was excessive. In Gilmere, the police repeatedly struck the man on the

head not to effect an arrest, but out of irritation. In Mercado, the police officer used

unnecessary deadly force. And in Fils, our conclusion was based on the proposition

that “non-violent suspects, accused of minor crimes, who have not resisted arrest . .

. are victims of constitutional abuse when police use[] extreme force to subdue

them.” 647 F.3d at 1289 (emphasis added). In contrast to this case, each of those

cases involved excessive force—that is, unreasonably disproportionate force—

under the circumstances.

      The standard of reasonableness at the moment applies: “Not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers . . .

violates the Fourth Amendment.” Graham, 490 U.S. at 396 (internal quotation and

citation omitted). Following Graham, this Court continued to apply the principle

“that the application of de minimis force, without more, will not support a claim



                                          27
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for excessive force in violation of the Fourth Amendment.” Nolin v. Isbell, 207

F.3d 1253, 1257 (2000). 11

        A review of the cases applying the de minimis force principle shows why the

force used here—though likely and understandably unsettling to a motorist—was

not excessive. Compare, for example, Vinyard v. Wilson. There the plaintiff had a

cookout at her boyfriend’s house. 311 F.3d at 1343. A police officer received a

complaint and told the plaintiff not to give alcohol to a neighbor’s son. Id. After the

police officer left, the plaintiff exchanged words with the neighbor. Id. The police

officer returned and told the plaintiff to get up out of her chair. Id. “Before she

could rise, however, he grabbed her arm and jerked her out of her chair.” Id. The

police officer took the plaintiff to jail. Id. When they arrived at the jail, the police

officer dragged the plaintiff inside “either by her shirt, her arm or her hair.” Id. at

1344. This Court concluded that the “force used and any injury sustained at those

two points were de minimis and not excessive.” Id. at 1349 n.13. 12 The cases


        11
          This is a shortened form of the legal maxim de minimis non curat lex, or “the law does
not concern itself with trifles.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 263 (3d ed.
2011). Of course the de minimis force principle “has never been used to immunize officers who
use excessive and gratuitous force after a suspect has been subdued, is not resisting, and poses no
threat.” Saunders, 766 F.3d at 1269.
        12
            During the ride to the jail, the police officer and the plaintiff had traded insults. Id. The
police officer stopped the car and opened the back door. Id. at 1343. The plaintiff ducked away.
Id. The police officer grabbed the plaintiff’s arm and breast. Id. The police officer then sprayed
the plaintiff’s face with pepper spray. Id. This Court said that “[a] strong argument exists that
even [the police officer’s] grabbing of [the plaintiff] and the minor bruising during the jail ride
constitute de minimis force and injury” but “[w]hat distinguishes [the police officer’s] force dur-
ing the jail ride from the de minimis force and injury cases is the use of pepper spray.” Id. n.13.

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Vinyard relied on for that conclusion each involved more force with less justifica-

tion than Officer Deal’s act of grabbing Mr. Williams and trying to push him back

into the car during this lawful stop. 13

       We’ve also considered whether the evidence would allow a reasonable jury

to find that Officer Deal used greater force than what we have described, say

smashing Mr. Williams’s head into the car. In the absence of any other evidence of

such force, we don’t think that Mr. Williams’s statements (“What is wrong with

you?”) during the fight permit such an inference.

       Accordingly, we conclude that the initial use of force—Officer Deal grab-

bing and attempting to push Mr. Williams back into the car—was not excessive

under the circumstances. Perhaps this wasn’t the wisest course of action. Maybe it

was a bad idea. But “[w]e do not sit in judgment to determine whether an officer

made the best or a good or even a bad decision in the manner of carrying out an ar-




       13
          See Vinyard, 311 F.3d at 1349 n.13 (describing “decisions where force and injury were
held to be de minimis and not excessive”); Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000)
(grabbing plaintiff and shoving him a few feet against vehicle, pushing knee in back and head
against van, and handcuffing him); Gold v. City of Miami, 121 F.3d 1442, 1444 (11th Cir. 1997)
(handcuffing too tightly and too long); Jones v. City of Dothan, 121 F.3d 1456, 1458 (11th Cir.
1997) (slamming plaintiff against the wall, kicking his legs apart, and requiring plaintiff to raise
hands above head as officers carried out arrest); Post v. City of Fort Lauderdale, 7 F.3d 1552,
1556 (11th Cir. 1993) (pushing plaintiff against wall while handcuffed), modified, 14 F.3d 583
(11th Cir.1994).



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rest.” Buckley, 292 F. App’x at 794.14 Even under the cases the plaintiff relies on

from a sister circuit, action that complies with the Fourth Amendment “is not ren-

dered unreasonable because it provokes a violent reaction.” City & Cnty. of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1777 & n.4 (2015) (discussing those cases

but declining to endorse or reject them). 15

                                                 3

       The plaintiff’s final theory is that the shooting itself was an unconstitutional

use of excessive force given the totality of circumstances. The Supreme Court’s

decision in Tennessee v. Garner, 471 U.S. 1 (1985), guides the Fourth Amendment

reasonableness analysis where a police officer uses deadly force. See Penley, 605

F.3d at 850. Under Garner, the use of deadly force is “more likely reasonable if:

the suspect poses an immediate threat of serious physical harm to officers or oth-

ers; the suspect committed a crime involving the infliction or threatened infliction


       14
           We’ve considered the reports of experts submitted by the plaintiff criticizing Officer
Deal’s conduct. But “so long as a reasonable officer could have believed that his conduct was
justified, a plaintiff cannot avoi[d] summary judgment by simply producing an expert’s report
that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or
even reckless.” City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quota-
tion omitted); see also id. (citing Saucier, 533 U.S. 194, 216, n.6 (Ginsburg, J., concurring in
judgment) (“[I]n close cases, a jury does not automatically get to second-guess these life and
death decisions, even though a plaintiff has an expert and a plausible claim that the situation
could better have been handled differently.” (quotation omitted))).
       15
          Because the initial force wasn’t excessive, we needn’t decide whether Mr. Williams’s
death could be a reasonably foreseeable consequence. See generally Kane v. Lewis, 604 F. App’x
229, 235 (4th Cir. 2015), cert. denied, 136 S. Ct. 358 (2015) (discussing constitutional violations,
proximate cause, and superseding cause).


                                                30
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of serious harm, such that his being at large represents an inherent risk to the gen-

eral public; and the officers either issued a warning or could not feasibly have done

so before using deadly force.” Penley, 605 F.3d at 850. “[O]nce we have deter-

mined the relevant set of facts and drawn all inferences in favor of the nonmoving

party to the extent supportable by the record” the reasonableness of a use of deadly

force “is a pure question of law.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). 16

       The district court found that genuine issues of material fact existed as to the

first and third of those factors. We disagree.

       In two respects, we part company with the district court’s analysis of the

third factor—the feasibility of issuing a warning. First, the order says “whether it

was feasible for Deal to have issued a warning prior to firing is also an integral one

of fact for jury determination.” That’s not so. As part of the reasonableness inquiry,

a determination whether it was feasible to issue a warning is a legal conclusion

drawn from facts. See Scott, 550 U.S. at 382; e.g., Penley, 605 F.3d at 854 & n.6.

Here there’s no genuine dispute of material fact about what happened, only the le-

gal significance of what happened.


       16
          We recognize that there is a difference of opinion about this. See Scott, 550 U.S. at 390
(Stevens, J., dissenting) (reasoning that “[d]epending on the circumstances . . . the question of
the reasonableness of the officer's actions should be decided by a jury”); see also Dan M. Kahan,
David A. Hoffman, and Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris
and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837, 843 (2009). But the opinion that
matters is the Supreme Court’s opinion. Recognizing that there’s room to judge underlying facts
differently, we have tried to confront any “unconscious priors” in deciding this case. See Richard
A. Posner, Divergent Paths: The Academy and the Judiciary 17 (2016).

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      Second, the order overemphasizes the significance of a verbal warning. “[A]

mechanical application of these factors . . . is not appropriate.” Penley, 605 F.3d at

850. Garner isn’t “a magical on/off switch that triggers rigid preconditions when-

ever an officer’s actions constitute deadly force.” Id. (quoting Scott, 550 U.S. at

382). “[N]one of these conditions are prerequisites to the lawful application of

deadly force by an officer seizing a suspect.” Id. We have “decline[d] . . . to fash-

ion an inflexible rule that, in order to avoid civil liability, an officer must always

warn his suspect before firing—particularly where . . . such a warning might easily

have cost the officer his life.” Id. at 854 n.6 (alteration in original and quotation

omitted). And Officer Deal drawing and aiming his gun plainly served as a nonver-

bal warning against approaching the officer; a warning that Mr. Williams disre-

garded.

      The first factor weighs heavily in Officer Deal’s favor. It can often be re-

duced to a single question: “[W]hether, given the circumstances, [the suspect]

would have appeared to reasonable police officers to have been gravely danger-

ous.” Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir. 2002). It is “constitu-

tionally permissible . . . for an officer to use deadly force when he has ‘probable

cause to believe that his own life is in peril.’” Singletary, 804 F.3d at 1181 (quoting

Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005)).




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      As to the first factor, the district court said “the ultimate question of whether

Deal reasonably feared for his safety is a question of fact when so much of the in-

cident does not appear on camera.” ECF No. 190, at 26. While we agree that some-

times video evidence can conclusively establish certain facts, see Scott, 550 U.S. at

380, that doesn’t make other evidence incapable of establishing facts for purposes

of summary judgment.

      The undisputed facts are that Mr. Williams threw and landed multiple punch-

es aimed at Officer Deal’s head. As the district court recounted, Mr. Williams

“grabbed Deal’s firearm holster and made several violent jerking motions. Deal

struggled to hold on to the gun, and the holster unsnapped.” ECF No. 190, at 9 (ci-

tation omitted). After Officer Deal had separated from Mr. Williams and drawn and

aimed his gun, Mr. Williams advanced towards Officer Deal. The distance between

them was no greater than ten feet when Mr. Williams advanced towards Officer

Deal, and the shot came less than two seconds after they separated. We conclude

that under those circumstances Officer Deal had probable cause to fear for his life.

      The fact that Mr. Williams was unarmed at the time of the gunshot doesn’t

change this result. Mr. Williams was actively and violently resisting a lawful sei-

zure. There had been a struggle at close quarters. Punches had been thrown and

landed. Even if Mr. Williams didn’t succeed in partly removing the gun from the

holster, a reasonable officer would have perceived that Mr. Williams was attempt-



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ing to gain control of the gun when he kept advancing. “Under the circumstances a

reasonable officer would perceive a substantial risk that [Mr. Williams] would seri-

ously injure or kill him, either by beating . . . him, or by taking his gun and shoot-

ing him with it.” See Billington, 292 F.3d at 1185; see also DeLuna v. City of Rock-

ford, 447 F.3d 1008, 1013 (7th Cir. 2006) (an officer “need not wait until there is a

physical struggle for control of his weapon before a situation presents an imminent

danger of serious physical injury”); Blossom v. Yarbrough, 429 F.3d 963, 968 (10th

Cir. 2005) (holding that deadly force was lawful because the suspect was advanc-

ing on the officer in what appeared to be an effort to get his weapon). In these cir-

cumstances, a police officer needn’t risk his life on the chance that the advancing

suspect has or will suddenly develop peaceful intentions. See Scott, 550 U.S. at

385.

       We conclude that this use of deadly force was objectively reasonable under

all of the circumstances.

                                          4

       In keeping with the standard of review, we have reviewed the record looking

for some evidence which contradicts the police officer’s account of the incident in

a way that makes a difference. We’ve found none.




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      The plaintiff hasn’t shown that Officer Deal violated the Fourth Amendment.

Accordingly, he is entitled to judgment from the plaintiff’s Fourth Amendment ex-

cessive-force claim.

                                          III


      The district court denied Officer Deal’s claim of official immunity on the

state-law claims, concluding that “Deal was no longer a ‘government official’ un-

der state law.” On appeal, Officer Deal relies on Taylor v. Waldo, 709 S.E. 2d 278

(Ga. Ct. App. 2011), which is consistent with our view of the scope-of-authority

requirement. Id. at 281 (citing Restatement §895D cmt. g). He asserts that he’s

demonstrated an entitlement to official immunity from the plaintiff’s state-law

claims because he performed discretionary acts without actual malice. See Valades

v. Uslu, 689 S.E. 2d 338, 343 (Ga. Ct. App. 2009). The plaintiff made no contrary

arguments. So they are waived. See, e.g., La Grasta v. First Union Sec., Inc., 358

F.3d 840, 847 n.4 (11th Cir. 2004).

                                         ***

      The district court order denying summary judgment to Jeffrey Deal is re-

versed. The case is remanded with instructions to enter judgment in favor of Of-

ficer Deal on all claims on the basis of this opinion.




                                          35
