              Case: 13-11470     Date Filed: 05/09/2014   Page: 1 of 4


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11470
                             Non-Argument Calendar
                           ________________________

                       D. C. Docket No. 1:03-cv-00087-CAP

JOHN ARNOLD,
MONESIA YOUNGBLOOD,
Individually and as Co-Administrator
of the Estate of Corey Ward, Deceased,

                                                          Plaintiffs-Counter
                                                          Defendants-Appellees,

                                       versus

RAYMOND S. BUNN,
Individually and in his official capacity
as a Police Officer of the City of Atlanta
Police Department,

                                                          Defendant-Counter
                                                          Claimant-Appellant,

CITY OF ATLANTA,
a municipal corporation of the State
of Georgia,

                                                          Defendant-Appellant.
                Case: 13-11470        Date Filed: 05/09/2014       Page: 2 of 4


                               ________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                            _________________________

                                         (May 9, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

       In this civil rights case, Officer Raymond Bunn appeals 1 the district court’s

denial of his motion for summary judgment on the basis of qualified immunity and

official immunity. 2 In the early morning of July 14, 2002, Bunn and Officer Terry

Mulkey allegedly observed Jamal Smith breaking into a car in a parking lot in

Atlanta. After the alleged crime, Smith got into an SUV with five other people,

including the driver, Corey Ward. Bunn fired two shots at the SUV as it was

exiting the parking lot. These shots struck and killed Corey Ward. According to

Bunn, he was in fear for his life when he shot Ward. John Arnold and Monesia

Youngblood, individually and as co-administrators of the Estate of Corey Ward

(Appellees) brought a 42 U.S.C. § 1983 action, alleging Bunn fired his gun at



       1
           Although the City of Atlanta also appeals the district court’s denial of qualified
immunity to Bunn, as a municipality sued in its official capacity it has no right to immediate
interlocutory appeal from a denial of qualified immunity as it cannot assert such a defense.
       2
         We affirm the district court’s conclusion that Bunn is not entitled to official immunity
under Georgia law on the basis of its well-reasoned discussion of this issue.


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Ward’s vehicle when it had already passed Bunn and the vehicle was not a danger

or threat to Bunn, or his partner, Mulkey.

       After thorough review, 3 we affirm the district court’s conclusion that Bunn

is not entitled to qualified immunity. “Qualified immunity does not apply where

the facts show that the official violated the plaintiff’s constitutional rights and

where the law clearly established those rights at the time of the alleged

misconduct.” Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013).

       We analyze this claim “under the Fourth Amendment’s objective

reasonableness standard.” Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012)

(quotations omitted). Viewing the evidence in the light most favorable to the

Appellees, as we must at this stage of the proceedings, 4 see Morton, 707 F.3d at

1280, Bunn was beside the SUV at the time of the shooting, the vehicle was not

being driven at a high rate of speed, was not accelerating or heading toward any

person either prior to or during the shooting, and was not being used as a deadly

weapon. See Terrell, 668 F.3d at 1255. An objectively reasonable officer would

not have used deadly force under these circumstances, and therefore Bunn’s

actions violated Ward’s clearly established Fourth Amendment right to be free


       3
         “We review a district court’s denial of summary judgment on qualified immunity
grounds de novo.” Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013).
       4
         “We acknowledge that the facts, as accepted at the summary judgment stage of the
proceedings, may not be the actual facts of the case.” Morton, 707 F.3d at 1280 (quotations
omitted).
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from excessive force. See Tennessee v. Garner, 471 U.S.1, 11 (1985) (holding a

police officer can use deadly force to prevent the escape of a fleeing non-violent

felony suspect only when the suspect poses an immediate threat of serious harm to

the police officer or others); Morton, 707 F.3d at 1282-83.

      Thus, we affirm the district court’s denial of qualified immunity to Bunn.

      AFFIRMED.




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