                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                          MARCH 12, 2008
                            No. 07-13776
                        Non-Argument Calendar            THOMAS K. KAHN
                                                             CLERK
                      ________________________

                 D. C. Docket No. 05-00843-CV-5-CLS

RICKY LEE SCHEUERMAN,
                                                  Plaintiff-Appellee,

                                 versus

HUNTSVILLE, ALABAMA, CITY OF,
a municipal corporation,
                                                 Defendant,

JEFFREY WEABER,
                                            Defendant-Appellant.
                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                     _________________________

                            (March 12, 2008)

Before BLACK, MARCUS and WILSON, Circuit Judges.


PER CURIAM:
       Appellee Rickey Lee Scheuerman sued Appellant Investigator Jeffrey

Weaber, asserting Fourth Amendment unlawful arrest/imprisonment and excessive

force claims under 42 U.S.C. § 1983 and claims of assault and battery and

unlawful detention under Alabama law. The district court determined Appellant

was not entitled to qualified immunity from the excessive force claim or

discretionary function immunity from the state law claims, and it denied

Appellant’s motion for summary judgment.1 On appeal, Appellant contends the

force he used against Appellee was reasonable under the circumstances, since a

reasonable officer could have objectively believed Appellee was using his vehicle

as a deadly weapon. As to the state law claims, Appellant asserts he was engaged

in a discretionary function and Appellee failed to overcome the presumption of

discretionary function immunity by showing Appellant acted willfully,

maliciously, fraudulently, or in bad faith.

       On the excessive force claim, the district court determined Appellant’s use

of deadly force was not objectively reasonable under the totality of the

       1
         The district court correctly dismissed Appellee’s federal unlawful arrest claim, since
Appellant never arrested Appellee. However, the court noted Appellee’s unlawful detention
claim was also one for false imprisonment. Appellant’s summary judgment motion did not
address the false imprisonment claim, instead focusing solely on why Appellee’s false arrest
claim was due to be dismissed. So, the false imprisonment claim was not before the district
court, who noted the claim would be addressed at trial. Since the district court did not address
the false imprisonment claim in ruling on summary judgment, the claim is not before us on
appeal.

                                                 2
circumstances. Also, the court noted summary judgment on the grounds of

qualified immunity was inappropriate, since Appellee created a serious factual

dispute as to Appellant’s version of the events. Finally, the court decided

Appellant violated clearly established law of which a reasonable officer would

have known, based on the Supreme Court’s having ruled deadly force may not be

used on an unarmed burglary suspect merely to prevent escape. See Tennessee v.

Garner, 471 U.S. 1, 21 (1985). The court concluded it was clearly established at

the time of the incident that the actions alleged by Appellee were unconstitutional.

      As to the state law claims against Appellant, the district court noted both

federal and Alabama courts have recognized statutes or police department rules

may eliminate an officer’s discretion, making discretionary function immunity

unavailable. The court then set forth various Huntsville Police Department

directives, which Appellant would have violated under Appellee’s version of the

events. The court concluded these violations would strip Appellant of

discretionary function immunity.

      We review the district court’s denial of summary judgment based on

qualified immunity de novo, construing all facts in the light most favorable to the

non-moving party. Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005). After

carefully examining the record, the parties’ briefs, and the district court’s

                                           3
extensive opinion, we conclude the district court did not err in denying

Appellant’s summary judgment motion. Appellant’s alleged use of deadly force

was clearly unreasonable under the totality of the circumstances, and Appellant

had fair warning his conduct violated Appellee’s constitutional rights. Thus,

Appellant is not entitled to qualified immunity from Appellee’s excessive force

claim. As to the state law claims, even if Appellant were engaged in a

discretionary function during the incident, he is not entitled to discretionary

function immunity at the summary judgment stage, since Appellee has raised a

genuine issue of material fact as to whether Appellant acted willfully, maliciously,

or in bad faith.

      AFFIRMED.




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