              Case: 14-14424      Date Filed: 10/29/2015   Page: 1 of 22


                                                                           [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                    No. 14-14424
                              ________________________

                    D.C. Docket No. 6:13-cv-00855-GAP-GJK



JAMES RYAN SINGLETARY,

                                                                 Plaintiff–Appellee,

versus


JUAN VARGAS,
in his individual capacity,

                                                              Defendant–Appellant.



                              ________________________

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

                                  (October 29, 2015)
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Before WILLIAM PRYOR, JULIE CARNES, and SILER, * Circuit Judges.

JULIE CARNES, Circuit Judge:

       In August of 2012, Defendant Juan Vargas, a deputy with the Brevard

County Sheriff’s Office (“Sheriff’s Office”), provided back-up during a drug bust

of the driver of a vehicle in which Plaintiff James Singletary was a passenger.

Perceiving that this vehicle was trying to run him down as he stood in front of it,

Defendant fired shots at the car as he was falling to the ground. One of those shots

hit Plaintiff, causing serious injury to his leg. Plaintiff sued Defendant in his

individual capacity under 42 U.S.C. § 1983, contending that the above response by

Defendant constituted excessive force in violation of the Fourth Amendment. 1

Defendant moved for summary judgment on the ground of qualified immunity.

The district court denied the motion and Defendant now appeals. We conclude

that Defendant is entitled to qualified immunity, REVERSE the district court’s

ruling on Defendant’s motion for summary judgment, and direct that court to enter

judgment consistent with this opinion.




*
  Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
1
  An excessive force claim that arises in the context of an arrest or investigatory stop implicates
the Fourth Amendment’s protection against unreasonable seizures of the person. Graham v.
Connor, 490 U.S. 386, 394–95 (1989).

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                                      BACKGROUND

I.     Factual Background2

       While interviewing a drug suspect in July 2012, Sheriff’s Office Deputy

Thomas Walter obtained the number of a cellphone purportedly used to conduct

illegal drug deals.3 Posing as an interested customer, Walter texted the number

and indicated that he was looking to buy marijuana and oxycodone. Eventually

directed to a second number, he this time texted that he wanted to buy high-grade

marijuana. In response, the person at the other end of the text communication

replied, “[C]ome see me.”

       Deputy Walter showed these texts to his supervisor, Lt. Jeffrey Ludwig, who

decided to set up an operation to investigate this individual who appeared receptive

to Walter’s efforts to purchase drugs. Defendant Vargas was assigned to the

tactical support team for the operation.

       Around 11:00 p.m. on August 3, 2012, Lt. Ludwig met with Walter and

several other deputies, including Defendant Vargas, to discuss the planned


2
  In our review of the district court’s summary judgment ruling, we accept Plaintiff’s version of
the facts and draw all inferences in the light most favorable to Plaintiff, the non-movant. See
Tolan v. Cotton, __ U.S. __, 134 S. Ct. 1861, 1866 (2014) (“[C]ourts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.”). However, we accept
Defendant’s factual assertions when they are based on undisputed evidence and have not been
contradicted by Plaintiff. See Scott v. Harris, 550 U.S. 372, 379 (2007) (“[F]acts must be viewed
in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” (quoting Fed. R. Civ. P. 56(c))).
3
  Deputy Walter was a member of the Street Crimes Unit in the Sheriff’s Office. The Street
Crimes Unit conducted targeted operations, such as drug investigations.

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operation. The plan was relatively simple. Walter would send another text

proposing a drug buy at an agreed-upon location. Deputy Jason Roberts, dressed

in plain clothes, would play the role of the drug purchaser. Followed by covert

tactical personnel and Sheriff’s Office deputies, Roberts would meet the suspect at

the designated location, after which the other deputies would conduct a “felony

stop” and investigation.

      Following this planning session, Deputy Walter sent a text to the second

number, stating that he wanted to buy $100 worth of marijuana. He received a

response indicating that marijuana and oxycodone were available for purchase.

Walter and the suspect agreed to meet at a nearby Sunoco gas station to conduct

the deal. Deputy Roberts then began walking to this Sunoco station. Joined by

Corporal Lyndale Smith and his service dog, Defendant moved to the back of the

gas station, where he was concealed but could still observe Deputy Roberts. Two

marked and two unmarked police cars hid themselves in other areas around the

station. Lt. Ludwig remained about a quarter mile away, maintaining contact with

the other officers via radio.

      Based on Walter’s earlier investigation, the deputies anticipated that the

suspect would arrive in a red Toyota. And in fact, at about 1:00 a.m., a red Toyota

pulled into the Sunoco station. As the officers later learned, the car was driven by

Nicholas Lechner, with Plaintiff riding in the passenger seat. As the car turned


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into the station, Deputy Roberts told Lt. Ludwig over the phone: “This is the car.

This is the car.” Lt. Ludwig then gave the “go” signal to the deputies. After

waiting about 15–20 seconds, Defendant and Corporal Smith moved toward the

car. Wearing his tactical uniform and patrol hat, Defendant loudly shouted,

“Sheriff’s office, let me see your hands,” as he approached the car.

       Helpful to our review in this case, a surveillance video captured Defendant’s

approach and the incident that followed.4 The video first shows Roberts, the

putative purchaser, walking to the passenger window and then around the back and

toward the driver’s side of the car. Shortly thereafter, Corporal Smith and his dog

are seen running toward the passenger side of the car, with Defendant following

slightly behind. Smith stops and points his handgun at the passenger window,

while Defendant continues walking toward the front of the car. Defendant makes

his way to the front of the car, as evidenced by the fact that the front right

headlight of the car can be seen shining directly on his left pants leg. As soon as

Defendant reaches this position, the car suddenly accelerates toward him, and the

car’s headlight beam can be seen moving up Defendant’s pants leg as the car

moves forward. Almost immediately, Defendant begins falling to the ground and,

within one to two seconds of its initial acceleration, the car abruptly stops. While



4
  Several surveillance videos captured the incident. We describe and rely on the video with the
best angle.

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Defendant is on the ground near the right front tire, the car briefly rolls forward a

second time, then stops again.

       Because the video has no audio component, it does not reveal when the

gunshots at issue in this case were fired. Defendant, Lechner, and Plaintiff each

offered statements on that matter. Defendant testified that after approaching from

the passenger’s side of the car, he moved to the front of the car, at which point he

stopped when the vehicle started coming toward him. Defendant tried to

backpedal, but the right passenger side bumper struck him in the left leg, causing

him to lose his balance, and he fell to the left. According to his testimony, he fired

the first shot 5 while the car was still accelerating. His first shot would have

occurred “at the same time” as the vehicle made contact with him or “maybe . . .

half a second sooner.” He pulled the trigger on his weapon four times, “as quick as

[he] could,” and was “firing the rounds as [he was] falling to the ground.”

Corroborating Defendant’s testimony regarding the timing of events, Lechner

confirmed in an initial statement given shortly after the incident that the shots by

the officer were fired as the car was moving, but he also stated that the car never

actually struck Defendant.6

       Understandably, given how quickly everything happened and how

5
  As to the subsequent three shots, all witnesses appear to agree that these shots were fired in
quick succession after the first shot.
6
  Lechner asserted his Fifth Amendment rights and refused to testify under oath at his
deposition.

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unanticipated were the turn of events from Plaintiff’s point of view, his account of

the chronology was not very specific. He gave a statement two days after the

incident and admitted that after the undercover officer had walked to Lechner’s

side of the window, “everything’s pretty much just a blur.” He recalled that he put

his hands up and “the next thing that happened [he] was getting shot through the

passenger side of the door.” He opined that perhaps the officers thought Lechner

was putting the car into the drive gear, but “[e]verything happened so fast . . . [he]

wasn’t paying attention.” As to the timing of the shots, he stated that they occurred

about two seconds after the undercover officer had walked to the driver’s side of

the car. He was uncertain whether the car had rolled forward once the officers

approached, and he never saw Defendant fall down. In fact, it was his belief that

Defendant was not standing in front of the car but that instead he was standing to

the right side of the front of the car when the events unfolded.

      Plaintiff was deposed over eighteen months later. He testified that he saw

only one of the two deputies who approached the car, but it is unclear from his

testimony whether it was Corporal Smith or Defendant whom he saw. As to the

timing of the acceleration of the car, Plaintiff indicated that when Lechner began

talking to the undercover officer, Plaintiff asked Lechner to leave and take him

home, at which point Lechner began pulling out of the parking lot. After Lechner

began pulling out, Plaintiff saw a figure (one of the deputies) running toward his


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side of the car, at which point Lechner hit the brakes. Either right after Lechner hit

the brakes or just as he hit the brakes, “the sky just lit up” “like fireworks, and they

were shooting in the car.” The car was no longer moving when Plaintiff heard the

gunshots. He never felt the car hit anyone or saw the car hit a deputy.

       After the above events, officers found in the car a semiautomatic handgun in

its locked glove compartment; a plastic bag containing 48 grams, plus nine smaller

bags, of marijuana; and a cellphone containing the text messages sent between

Deputy Walter and the suspect. Based on his acceleration of the car toward

Defendant, Lechner was charged with battery on a police officer. He pled guilty to

aggravated assault on a police officer, although he did not enter his plea until after

the close of discovery and over two months after Defendant filed his motion for

summary judgment in this case. In his plea, Lechner admitted that he had

assaulted Defendant by “driving at him with a motor vehicle and causing in him a

fear that violence was about to take place and that the motor vehicle would

constitute a deadly weapon.”

II.    Procedural History

       Plaintiff filed the present action, asserting § 1983 claims against Defendant

and Lt. Ludwig, in their individual capacities. 7 At the close of discovery, both

defendants moved for summary judgment on the ground of qualified immunity. As
7
 Plaintiff also asserted a § 1983 claim against the Sheriff in his official capacity. That claim
was dismissed by agreement of the parties.

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noted, a few months after the motion was filed and also after Plaintiff had filed his

response, Lechner entered his guilty plea to aggravated assault on a police officer.

Defendant moved for leave to submit the plea transcript, which contained

Lechner’s admission to “driving [the car] at” Defendant. The district court refused

to allow Defendant to submit this transcript, and it subsequently denied

Defendant’s motion for summary judgment. 8

       In its summary judgment order, the district court acknowledged that

Defendant was acting within his discretionary authority when he shot Plaintiff, and

that it was therefore Plaintiff’s burden to show that qualified immunity was not

justified. But it concluded that Plaintiff had met this burden based on the court’s

determination that a reasonable officer would not have used deadly force under the

circumstances. According to the court, Defendant had no reason to believe the

suspect was dangerous because the crime under investigation involved only a $100

drug deal. Further, although the court acknowledged that an officer who

reasonably believed Lechner was trying to run him over would have been justified

in using deadly force, the court found that material questions of fact existed as to

whether Defendant could have reasonably perceived that he was in danger. In

reaching this conclusion, the court relied on (1) Plaintiff’s testimony that


8
  The court did, however, grant summary judgment to Lt. Ludwig, noting that he was a quarter
mile away when the shooting occurred and further finding no basis for imposing liability under a
supervisory theory.

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Defendant was not in the car’s path as it accelerated and that the car was stopped

when Defendant began shooting and (2) the fact that the bullet holes were found in

the side of the car, rather than in the front.

       Defendant filed a motion for reconsideration, again raising Lechner’s

admission at his guilty plea hearing that he assaulted Defendant by “driving at

him” with the car. The district court denied the motion, stating that the new

evidence “would not change the Court’s opinion that a jury question exists as to

the reasonableness of the force used” by Defendant. Defendant has appealed both

the district court’s summary judgment order and its order denying reconsideration.

                                     DISCUSSION

I.     Standard of Review

       “We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).

In conducting our review, we construe the evidence in favor of the plaintiff and

decide whether the defendant is entitled to qualified immunity under the plaintiff’s

version of the facts. Id.; see also Tolan v. Cotton, __ U.S. __, 134 S. Ct. 1861,

1866 (2014) (noting, in a qualified immunity case, “the importance of drawing

inferences in favor of the nonmovant”). We acknowledge that the “facts, as

accepted at the summary judgment stage of the proceedings, may not be the actual


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facts of the case.” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009)

(internal quotation marks omitted). Nevertheless, we view the facts from the

plaintiff’s perspective because the determinative issue on appeal is “not which

facts the parties might be able to prove” but rather whether “certain given facts”

demonstrate a violation of clearly established law. Crenshaw v. Lister, 556 F.3d

1283, 1289 (11th Cir. 2009) (quoting Lee v. Ferraro, 284 F.3d 1188, 1190 (11th

Cir. 2002)).

II.    Qualified Immunity

       Resolution of Defendant’s appeal requires us to decide whether Plaintiff

proved that Defendant was not entitled to qualified immunity for his actions.9

Qualified immunity balances two important interests: the need to hold accountable

a public official who has irresponsibly exercised his power and the obligation to

protect from liability an official who has reasonably performed his duties. Pearson

v. Callahan, 555 U.S. 223, 231 (2009). We are required to grant qualified

immunity to a defendant official unless the plaintiff can demonstrate two things:

(1) that the facts, when construed in the plaintiff’s favor, show that the official

committed a constitutional violation and, if so, (2) that the law, at the time of the



9
  Before he can claim entitlement to qualified immunity, a public official must first show he was
engaged in a discretionary duty when the allegedly wrongful act occurred. Dalrymple v. Reno,
334 F.3d 991, 995 (11th Cir. 2003). Defendant was clearly acting within the scope of his
discretionary authority when he shot at the car Lechner was driving, and Plaintiff does not
disagree.

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official’s act, clearly established the unconstitutionality of that conduct.

McCullough, 559 F.3d at 1205.

      In our inquiry as to the first prong of the test, we do not deal in abstractions,

but instead look carefully at the specific facts of the case. Id. at 1206. And before

deciding whether a police officer has actually used excessive force, we must “slosh

our way through the factbound morass of ‘reasonableness’” because, in the end,

“all that matters is whether [the officer’s] actions were reasonable.” Scott v.

Harris, 550 U.S. 372, 383 (2007). As to the second prong of the test, even if the

defendant official’s acts are unconstitutional, he can be held liable only if the law

so clearly established the wrongfulness of his conduct that any reasonable official

in his place would have understood that he was violating the plaintiff’s

constitutional rights. Plumhoff v. Rickard, __ U.S. __, 134 S. Ct. 2012, 2023

(2014).

      Viewing the evidence in the light most favorable to Plaintiff, we conclude

that he has satisfied neither prong in this case, and therefore Defendant is entitled

to summary judgment.

      A.     Constitutional Violation

      Plaintiff’s excessive force claim is analyzed under the objective

reasonableness standard of the Fourth Amendment. Id. at 2020 (citing Graham v.

Connor, 490 U.S. 386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985)). The


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reasonableness standard “requires a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Id. (internal quotation marks

omitted). Reasonableness in this context depends on all the circumstances relevant

to an officer’s decision to use force and the amount of force used. See Jean–

Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). We view the

circumstances “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Plumhoff, 134 S. Ct. at 2020 (internal

quotation marks omitted). And we allow for the fact that officers are often

required to make “split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in a

particular situation.” Id. (internal quotation marks omitted).

      As to deadly force, a police officer may use such force to dispel a threat of

serious physical harm to either the officer or others, or to prevent the escape of a

suspect who threatens this harm. McCullough, 559 F.3d at 1206; Morton v.

Kirkwood, 707 F.3d 1276, 1283 (11th Cir. 2013). The district court concluded that

the deputies would have had no reasonable belief that either Lechner or Plaintiff

posed a risk of serious harm to others had Lechner merely been trying to escape the




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scene. 10 Thus, the use of deadly force to stop a perceived escape attempt would

have been excessive. We agree with the district court on this point.

       Defendant argues, however, that he fired his gun, not to prevent an escape,

but in self-defense because he thought the car occupied by Plaintiff and Lechner

was about to run him over. We have held that it is reasonable, and therefore

constitutionally permissible, for an officer to use deadly force when he has

“probable cause to believe that his own life is in peril.” Robinson v. Arrugueta,

415 F.3d 1252, 1256 (11th Cir. 2005). For that reason, we have “consistently

upheld” an officer’s use of deadly force in cases where the officer reasonably

believed his life was endangered by a suspect who “used or threatened to use his

car as a weapon.” McCullough, 559 F.3d at 1207; see also Terrell v. Smith, 668

F.3d 1244, 1255 (11th Cir. 2012) (granting qualified immunity where “an

objectively reasonable law enforcement officer could well have perceived that [a]

moving vehicle was being used as a deadly weapon”).

       Indeed, the district court acknowledged the above legal principle and

recognized that had Defendant believed “Lechner was trying to run him over . . .

10
   Although its holding did not rest on this fact, a point of emphasis in the district court’s order
was that the crime under investigation was a “minor, non-violent drug offense.” We agree with
the district court that it would have been unreasonable to use deadly force to apprehend the
suspect of such a crime in the absence of any other evidence to suggest he posed a danger.
However, we also note Lt. Ludwig’s undisputed testimony that officers investigating even minor
drug crimes frequently encounter firearms and counter-surveillance equipment, meaning that in
assessing the risks involved in such an investigation, a prudent officer must consider the
possibility of a violent response from the subject. And, in fact, in searching Lechner’s car after
his arrest, officers found a semiautomatic handgun and ammunition in the glove compartment.

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[Defendant] would have been justified in using deadly force to stop the car.” But

taking the evidence in the light most favorable to Plaintiff, the court inferred that

Defendant was not in the car’s path and moreover that the car had stopped its

forward movement before he began shooting. For this reason, the court concluded

that Defendant “was not in danger of being hit by the car when he opened fire,”

and thus a reasonable officer in his position could not have had probable cause to

believe that he was being threatened with the infliction of serious physical harm.

And because Defendant was under no threat of serious physical injury, the court

found his use of deadly force to be unreasonable, which conclusion disqualified

Defendant from qualified immunity.

      Because we, the district court, and the parties agree on the governing legal

principles, the question before us then becomes whether the district court’s

construction of the evidence in the record was accurate. Having carefully reviewed

that evidence in the light most favorable to Plaintiff, we disagree with the district

court and conclude that a reasonable officer would have reasonably perceived that

he was in imminent danger of being run over by Lechner’s car. Thus, the officer’s

firing of his gun in an effort to stop the car did not constitute excessive force.

      The district court reached its conclusion that Defendant was not in the path

of the car and that the car was stationary when he fired his shots based largely on a

few fragmentary statements in Plaintiff’s deposition testimony. It is true that in


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determining whether summary judgment is appropriate based on qualified

immunity, a district court must generally consider the facts in the light most

favorable to the plaintiff. Scott, 550 U.S. at 377. It is unclear whether Plaintiff’s

testimony on these points creates a viable dispute as to the above questions.

Leaving aside the fact that in his original statement Plaintiff had said that the entire

incident was pretty much a blur to him, that everything happened fast and he was

not paying attention, and that he was uncertain whether the car had rolled forward

once the officers had approached, we note that Plaintiff’s somewhat clearer

recollection during his deposition is likewise ambiguous. In fact, it is impossible

to determine whether Plaintiff ever saw Defendant or whether his testimony

instead referenced Corporal Smith. Plaintiff stated in his deposition that he could

barely see anything at the time of the shooting because the parking lot was

extremely dark. In addition, Plaintiff said that he saw only one of the two deputies

who approached his side of the car. According to Plaintiff, he was looking out the

passenger-side window when he saw the deputy approach. The video shows that

Corporal Smith is the deputy who headed toward Plaintiff’s side of the car and

approached the passenger-side window, whereas Defendant, following behind,

went toward the front of the car. If the deputy that Plaintiff observed was Smith, it

means that he failed to observe the pivotal event in this case: whether the car

accelerated toward Defendant when the latter was allegedly in front of the vehicle.


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        As to the timing of the shooting in relation to the stopping of the vehicle,

Plaintiff recalled that Lechner hit the brakes at the same time as the deputy

observed by Plaintiff approached his side of the car. Then, either at the moment

that Lechner hit the brakes or right after, “the sky just lit up” and “they were

shooting in the car.” If shots were fired around the same time as Lechner hit the

brakes, Plaintiff’s testimony is largely consistent with Defendant’s version of the

timing of events.

        But even if we spruce up Plaintiff’s testimony and, as did the district court,

infer him to be stating either that the car did not accelerate while Defendant was

standing in front of it or that Defendant was never, at any time, standing in front of

the car, the surveillance video conclusively rebuts such testimony. The video

establishes that Defendant was in the path of the car when it accelerated because it

shows the car’s right front headlight beam shining directly on Defendant’s left

pants leg. As the car accelerates, the headlight beam moves up Defendant’s pants

leg until Defendant begins falling to the ground and the car comes to an abrupt

stop.

        It is true that that we construe the facts in the light most favorable to the

non-moving party. But when “opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could

believe it,” a court should not adopt the contradicted version for purposes of ruling


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on a motion for summary judgment. Scott, 550 U.S. at 380 (holding that where

videotape footage clearly contradicted the non-movant’s testimony, the district

court should not have relied on the testimony in resolving the motion for summary

judgment on a Fourth Amendment excessive force claim). This is so because

when the non-movant’s assertion is “so utterly discredited” by the record, no

“genuine” dispute of material fact exists sufficient to prompt an inference on

behalf of the non-movant. Id.

      And that is the case here. Given the video evidence, Plaintiff’s testimony

cannot call into question Defendant’s assertion that he was in the path of Lechner’s

car when the latter accelerated toward him, thereby causing Defendant to

reasonably fear for his life. As to the district court’s reliance on Plaintiff’s

testimony that Lechner applied the brakes at the same moment the shots rang out,

we assume this assertion to be true, but it does not create an issue of fact as to

whether any danger had dissipated in the split-second immediately preceding

Defendant’s decision to use deadly force. See Robinson, 415 F.3d at 1256 (“Even

if in hindsight the facts show that [the defendant] perhaps could have escaped

unharmed, we conclude that a reasonable officer could have perceived that [the

suspect] was using the [car] as a deadly weapon.”). Moreover, whether the car hit

Defendant or just rapidly accelerated toward him, it would have been reasonable

for Defendant to fear for his safety. See Long v. Slaton, 508 F.3d 576, 581 (11th


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Cir. 2007) (“[T]he law does not require officers in a tense and dangerous situation

to wait until the moment a suspect uses a deadly weapon to act to stop the

suspect.”). Indeed, when previously addressing circumstances that are not

materially distinguishable from the facts here, we found an officer’s use of deadly

force to be constitutional. See Robinson, 415 F.3d at 1256 (upholding an officer’s

use of deadly force against a suspect who slowly—at one or two miles per hour—

drove a vehicle toward the officer as he stood between the suspect’s vehicle and a

parked car).

       Nor do we find persuasive the district court’s observation that, although not

dispositive, the location of the bullet holes in the side of the car, not the front, “also

supports a conclusion that [Defendant] was not in danger of being hit by the car

when he opened fire.” Again, the surveillance video clearly shows that Defendant

was in the path of the car when it accelerated. The only ballistics evidence in the

record is the report of defense expert Richard Ernest, 11 who concluded that the

shots entered the side of the car because of the direction Defendant was falling

when he began firing, and not because Defendant was standing at the side of the

car when he began shooting.

11
   Plaintiff’s expert, Robert Wyman, whom Plaintiff characterized as a “forensic photographer,”
opined that the shots originated from the passenger side, as opposed to the front of the vehicle.
Filing a Daubert motion to exclude consideration of Wyman’s opinion, Defendant argued that
Wyman lacked any specialized training in ballistics and that his opinion as to the origin of the
shots was unreliable and based on speculation. Plaintiff did not oppose Defendant’s motion, and
the district court never referenced the Wyman testimony in its summary judgment order.
Similarly, we do not consider Wyman’s opinion on appeal.

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         In short, taking the evidence in the light most favorable to Plaintiff, we

conclude that this evidence demonstrates that Lechner’s car began accelerating

toward Defendant as he stood in front of it and that his use of deadly force to stop

what appeared to be an imminent threat to his life was not excessive. That being

so, Defendant did not violate the Constitution when he responded with deadly

force.

         B.    Clearly Established Law

         Even assuming a constitutional violation, Defendant is entitled to qualified

immunity unless Plaintiff can show that his Fourth Amendment rights were

“clearly established” at the time of the shooting. Plumhoff, 134 S. Ct. at 2023. To

be clearly established, the contours of a right must be “sufficiently definite that any

reasonable official in the defendant’s shoes would have understood that he was

violating it.” Id. “The salient question is whether the state of the law at the time of

an incident provided ‘fair warning’ to the defendant[] that [his] alleged conduct

was unconstitutional.” Tolan, 134 S. Ct. at 1866 (internal quotation marks

omitted).

         Fair warning is most commonly provided by materially similar precedent

from the Supreme Court, this Court, or the highest state court in which the case

arose. See Terrell, 668 F.3d at 1256. However, a “judicial precedent with

materially identical facts is not essential for the law to be clearly established.”


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Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010). Authoritative judicial

decisions may “establish broad principles of law” that are clearly applicable to the

conduct at issue, and it may also be obvious from “explicit statutory or

constitutional statements” that certain conduct is unconstitutional. Griffin Indus.,

Inc. v. Irvin, 496 F.3d 1189, 1209 (11th Cir. 2007); see also Taylor v. Barkes, __

U.S. __, 135 S. Ct. 2042, 2044 (2015) (“We do not require a case directly on point,

but existing precedent must have placed the . . . constitutional question beyond

debate.” (internal quotation marks omitted)).

      As explained above, it is well established that an officer may constitutionally

use deadly force when his life is threatened by a car that is being used as a deadly

weapon. See Robinson, 415 F.3d at 1256; McCullough, 559 F.3d at 1207. The

district court thus acknowledged that Defendant would be entitled to qualified

immunity if he reasonably believed Lechner was trying to run him over with the

car and thus feared for his safety. The court nevertheless denied qualified

immunity because it discounted undisputed video evidence showing that Defendant

was in the path of the car when it accelerated and that he fired just as—or a split

second after—Lechner hit the brakes. Properly accounting for this evidence, our




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               Case: 14-14424        Date Filed: 10/29/2015        Page: 22 of 22


case law did not put Defendant on notice that his use of deadly force violated any

clearly established rights. 12

                                        CONCLUSION

       For all of the above reasons, we conclude that Defendant is entitled to

qualified immunity as a matter of law. Accordingly, we REVERSE the order of

the district court denying his motion for summary judgment and direct that court to

enter judgment consistent with this opinion.




12
   In support of his argument that Defendant had “fair warning,” Plaintiff cites Morton v.
Kirkwood, 707 F.3d 1276 (11th Cir. 2013): a case in which an officer had pursued, and
ultimately shot, the plaintiff in his car. Id. at 1282. Although the officer claimed he shot the
plaintiff to prevent him from running over a fellow officer on the scene, the plaintiff disputed
that testimony, stating that the officer could not have reasonably perceived a threat to his life
because the plaintiff had put his car in park and raised his hands as soon as the officer identified
himself. Id. Taking the facts in the light most favorable to the plaintiff, we denied the defendant
qualified immunity because the evidence indicated that the officer “shot an unarmed man in a
stationary vehicle while having no reason to believe that the man would place anyone’s safety in
danger.” Id. The facts in Morton are clearly not the facts in this case, as the surveillance video
here shows that Lechner’s car did accelerate toward Defendant. See Robinson, 415 F.3d at 1256
(“[T]he inquiry into whether the law is clearly established must be undertaken in light of the
specific context of the case.” (internal quotation marks omitted)).


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