             Case: 16-15764     Date Filed: 11/17/2017   Page: 1 of 69


                                                                           [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-15764
                          ________________________

                      D.C. Docket No. 4:14-cv-00260-HLM



JUSTIN HAMMETT,
as Administrator of the Estate of Daniel
Hammett,

                                                  Plaintiff - Appellant,

                                      versus

PAULDING COUNTY, GEORGIA,
CITY OF DALLAS, GEORGIA,
NATHALIE D. WHITENER,
in her individual capacity,
JOEY HORSLEY,
in his individual capacity,
JOSEPH MAYFIELD,
in his individual capacity,

                                                  Defendants - Appellees,

GARY GULLEDGE,
in his individual capacity and his
capacity as Sheriff of Paulding County,
Georgia, et al.,

                                                   Defendants.
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                              ________________________

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

                                   (November 17, 2017)

Before JULIE CARNES and BLACK, Circuit Judges, and WILLIAMS, * Judge.

BLACK, Circuit Judge:

       On October 17, 2012, police officers Joey Horsley, Nathalie Whitener, and

Joseph Mayfield, defendants-appellees in this case, executed a search warrant at a

private residence in Hiram, Georgia, intending to seize methamphetamines

suspected to be in the possession of Brenda Van Cleve. During the execution of

the warrant, a confrontation ensued. Each of the officers fired one shot, two of

which struck Daniel Hammett, Van Cleve’s husband. Hammett died from his

injuries, and plaintiff-appellant Justin Hammett (Plaintiff) brought this suit on

behalf of Hammett’s estate. The complaint alleges the officers used excessive

force against Hammett in violation of the Fourth Amendment. The district court

granted summary judgment, determining the officers were entitled to qualified

immunity. Plaintiff appealed, and we affirm.




       *
         Honorable Kathleen M. Williams, United States District Judge for the Southern District
of Florida, sitting by designation.


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                                      I. BACKGROUND

A. The Hammett Household

       At the time of his death, Daniel Hammett was married to Brenda Van Cleve.

The two lived together in a house on Nebo Road with their son Clyde Dillon

Hammett (Clyde), who was seventeen years old and in high school at the time of

the incident. Together, Hammett and Van Cleve lived on Hammett’s disability

benefits of $650–$700 per month, plus Hammett’s earnings from occasional

repossession work he did for his son, Justin Hammett. Van Cleve was not

otherwise employed.

       The Nebo Road residence is a small, one-story, three-bedroom house. A

floor plan of the house and photos of the interior taken the day of the events giving

rise to this suit are attached as an appendix to this opinion. 1 Hammett and Van

Cleve covered all the windows and the front door with sheets of plastic and

blankets, which they affixed to the walls with packing tape. See Appendix at 11–

14, 16, 18–19. They did not typically keep the lights on in the living room,

kitchen, or hallway. Because the front door was sealed with tape, the family used

the carport door for entry and exit. See id. at 3–5, 11, 14. The carport door leads


       1
         The photos in the Appendix, taken the day of the incident, were included among many
others in a Georgia Bureau of Investigation report, as was a floorplan of the house. The photos
on pages 3 through 20 of the Appendix were verified by Clyde in his deposition as accurately
and truthfully depicting the house as it existed on the day of the incident. Clyde also verified the
floorplan. Van Cleve verified a smaller subset of the same group of photographs at her
deposition.
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into the kitchen and dining area, which is connected to the family room and from

there the rest of the house by an archway. See id. at 1, 5–8, 12. The family hung a

blanket in the archway for climate control purposes. See id. at 7–8. As a result of

these measures, there was very little natural or artificial light in the interior of the

house.

B. Van Cleve’s Drug Activity

      In October 2012, Van Cleve was addicted to methamphetamines. She had

smoked meth regularly since the early 1990s, resulting in multiple convictions and

various stints in prison. Van Cleve also frequently smoked marijuana. She was

the only chronic drug user in the household. Hammett and Van Cleve used meth

together in the mid-1990s and were incarcerated for doing so. Hammett had not

used meth since, though at the time of his death he was taking oxycodone and

other medications as directed by a doctor to treat his many health problems. Clyde

stayed away from drugs entirely.

C. The Search Warrant

      Van Cleve’s meth use led to the events giving rise to this lawsuit. She was

able to sustain her habit at no cost by having the drug “fronted” to her (i.e.,

receiving the meth without having to pay up front), selling a portion at a markup,

and keeping the remainder for her own consumption. Van Cleve’s drug activity

eventually attracted the attention of law enforcement. Joey Horsley (Horsley), an


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agent with the Paulding County Sheriff’s Office assigned to the Haralson-Paulding

Drug Task Force, received information over the course of the several months

preceding the incident that Van Cleve was selling meth from the carport of the

Nebo Road residence. Horsley recruited a confidential informant to make a

controlled purchase from her. The informant did so, successfully obtaining forty

dollars’ worth of meth from Van Cleve, which was recorded on video. Horsley

subsequently applied for a warrant to search the house and on October 16, 2012, he

obtained it. Horsley expected Van Cleve was a small-time dealer but thought that

he might be able to track down her supplier by searching the house.

D. The Search

      The search took place on Wednesday, October 17, 2012. At around

2:15 p.m., Horsley briefed the search team at the Paulding County Sheriff’s Office.

He advised the agents and deputies that the target of the search was Van Cleve and

that there was no intelligence as to whether firearms were present at the house. As

they prepared to execute the search warrant, the officers met in the parking lot of a

grocery store near the Nebo Road residence. Members of the search team donned

tactical bullet-proof vests, each bearing the designation “SHERIFF” or “POLICE”

in large letters on the front and back. Among the group of officers were Nathalie

Whitener (Whitener) and Joseph Mayfield (Mayfield), defendants-appellees in this

case. Whitener wore a vest similar to Horsley’s, with identical identifying


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markers, including the word “SHERIFF” emblazoned on the front and back in

large letters. Officers Brian Rutherford (Rutherford), Mike Blackmon, Seth Cook,

Scott Veal, and Jimmy Motes, none of whom are defendants in this case,

accompanied Horsley, Whitener, and Mayfield to execute the search warrant. All

of the officers wore police gear or uniforms easily identifying them as law

enforcement. After the briefing, the officers drove to the Nebo Road residence in

multiple marked and unmarked police cars and parked the vehicles in the driveway

at around 3:15 p.m.

      Horsley did not anticipate any violent resistance from Van Cleve and the

warrant did not contain a no-knock clause, so he and the other officers approached

the house in an unhurried manner. When Horsley reached the carport door, he

began knocking and announcing “Sheriff’s Office, search warrant” in a loud but

non-yelling voice. See Appendix at 3, 5. The other officers, including Whitener,

Mayfield, and Rutherford, lined up behind Horsley next to the door in a “stack” as

Horsley repeatedly knocked and announced “Sheriff’s Office,” which continued

for between fifteen and thirty seconds. No one inside the house answered.

      Having received no response, Horsley tried the doorknob and found it was

unlocked. He called out “Sheriff’s Office” again through the open door and asked

if anyone was home. Still no one answered, so Horsley entered, followed by the

other officers. The police had their firearms drawn and in the low-ready position,


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which is standard operating procedure in the execution of a search warrant in

Paulding County. On entering the residence, the officers found it was very dark

because there were no lights on in the kitchen, living room, or hallway, and there

was no natural light because all the windows were covered.2 The officers did not

turn on any lights as they moved through the house. 3 The officers continued to call

out “Sheriff’s Office, search warrant” as they moved through the house. Still they

received no answer.

       The officers cleared the kitchen. See id. at 5–7. Horsley, followed by

Whitener and Rutherford, moved through the blanket-covered opening into the

living room. See id. at 7–8 (showing the blanket on the floor and the doorway in

which it hung during the search). Horsley turned to the left toward a hallway

leading to the home’s bedrooms and bathroom. He waited there facing the hallway

for about five seconds, and again announced the officers’ presence. See id. at 9–

10. Whitener turned to the right to face the front door area, see id. at 11, 14, and

Rutherford turned further to the right to inspect an area in the far right-hand corner

of the living room, see id. at 13. Horsley heard voices coming from down the

hallway.

       2
          Note that the pictures of the house in the Appendix were taken after the lights had been
turned on. Van Cleve testified that the lights were on in the bathroom and the computer room
only at the time the warrant was executed.
       3
          According to Whitener, police officers are trained not to turn lights on until after a
building is secured because to do so would put the officers at risk by making them a target;
instead, they are to use the flashlights attached to their pistols.
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      The events that transpired next are the focus of the present dispute. In

determining whether the officers were entitled to summary judgment, we must

view the facts and make all reasonable inferences in the light most favorable to

Plaintiff. In order to determine whether a material dispute exists, we begin by

recounting the relevant evidence from each of the pertinent sources in detail as it

appears in the record.

      1. Testimony of principal witnesses

               a. Horsley

      According to Horsley, as he stood facing the hallway, he could see a light

coming from inside the computer room. See Appendix at 9–10. Watching the

hallway, he saw a shadow emerge. Horsley announced again that he was from the

Paulding County Sheriff’s Office. A large man came out of the room and turned

toward Horsley. 4 The man, who turned out to be Hammett, stopped for a second

and Horsley saw that his hands were tucked into his waistband area. Horsley then

saw him move something from his left hand to his right hand in a manner that

concealed what he had. The flashlight attached to Horsley’s pistol was illuminated

and he pointed it at Hammett’s waistband, announcing “Sheriff’s Office, let me see

your hands” as he did so. Horsley then decided he needed to get Hammett to the

ground so the other officers could move through the hallway and secure the rest of


      4
          According to his autopsy report, Hammett weighed 241 pounds.
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the house so that it could be searched. Hammett did not obey Horsley’s command

to raise his hands, however, and made no verbal reply. Instead, Hammett stepped

suddenly toward Horsley, sliding his body against the wall to Horsley’s left

(Hammett’s right) in an apparent attempt to move around him. As he approached,

Horsley dropped his firearm slightly, took a small step toward Hammett, and

reached out his left hand toward Hammett to begin to subdue him, but he did not

touch Hammett. Hammett quickly moved his right hand toward the left side of

Horsley’s head. As he did so, Horsley caught a brief glimpse of a shiny black

object in Hammett’s hands. Horsley thought Hammett was ambushing him with a

weapon, and he responded by raising his firearm and shooting toward Hammett.

Hammett cried out loudly in response to being hit by Horsley’s bullet. As Horsley

fired, he lurched backward to avoid Hammett’s attack and fell. While he was

falling, he heard two more shots in rapid succession and he feared that Hammett

was the shooter. All of the foregoing occurred in a matter of seconds. After

hearing the shots, Horsley scrambled backward, yelled for the other officers to get

out of the house, and quickly exited the residence.

             b. Whitener

      The events unfolded in a similar manner in Whitener’s telling. According to

Whitener, as Horsley was looking down the hallway, Whitener was facing to the

right into the living room. See Appendix at 11–14. Whitener heard Horsley say


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“show me your hands” or “let me see your hands” and immediately turned to the

hallway to see what was happening. As Whitener looked, she saw Hammett facing

in the direction of the officers, with his hands down near his waist as if to conceal

something, disobeying the command to show his hands. Hammett said nothing in

response to Horsley. Whitener also had a flashlight attached to her pistol, which

she pointed at Hammett, attempting to determine what Hammett was carrying.

After being ordered to do so again, Hammett still did not show his hands. Instead,

in Whitener’s words, Hammett “stepped over towards the right side of the hall and

just started walking at us at a fast pace,” still “not showing his hands,” and “like

hugging, basically hugging the wall.” Whitener observed Horsley attempt to grab

Hammett, and then saw Hammett suddenly reach up with his hands toward

Horsley’s face in an aggressive manner. She then heard a gunshot and saw

Horsley lurch backward and begin to fall. Whitener immediately fired her weapon

toward Hammett, who she feared was attempting to harm Horsley and had possibly

shot him. As she fired, Hammett twisted to his right and it appeared to her that the

shot hit him in the lower left side of his back. Whitener expressed some

uncertainty in her deposition as to whether she or Horsley shot first and whether it

was her bullet or Horsley’s that struck Hammett’s torso. However, she was clear

that the shots were nearly simultaneous, within a second or a half-second of one

another. As Horsley began yelling for the officers to get out of the house,


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Whitener fell backward into the living room and hid behind the couch near the

front door. See id. at 14. She did not exit the residence, but remained hidden,

listening to whispers between the remaining occupants and fearing for her life.

Later, when the house was secured, Whitener was able to leave the building.

               c. Rutherford

       Rutherford, who is not a defendant in this case, provided the only other

eyewitness account. According to Rutherford, as the officers entered the living

room, he already had the flashlight on his firearm activated because it was dark and

he could not see. He turned to the right toward the corner of the house, toward the

end of the couch where a pile of clutter lay. See Appendix at 13. He thought the

area was large enough for someone to be hiding there, based on the way the

shadows were cast. Rutherford then heard Horsley say “show me your hands” or

“let me see your hands.” Shortly thereafter, Rutherford heard a gunshot.

Rutherford pivoted to his left and his flashlight illuminated the words “SHERIFF”

on the back of a tactical vest. He then heard another shot and saw a flash in front

of the officer wearing the vest. After he heard that shot, the person wearing the

vest—Rutherford did not yet recognize which officer it was—fell to the ground. 5

As he looked to the ground, Rutherford recognized the officer was Horsley. He
       5
          Deputy Jimmy Motes was not deposed, but his supplemental incident report indicates
that he entered the living room and immediately heard two shots, then turned and saw Horsley
falling backward. This is consistent with Rutherford’s testimony and Plaintiff’s contention that
both shots were fired before Horsley had fallen completely.


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thought Horsley was hurt. He grabbed Horsley and helped him exit the building.

Rutherford testified that the only officer he saw was Horsley; he did not know

where Whitener was at the time. After reaching down to help pick up Horsley,

Horsley told him to get out, and Rutherford exited the building.

              d. Van Cleve

       Van Cleve was at home and admits she was under the influence of meth

when the officers arrived. 6 She usually smoked meth and marijuana in the

computer room, which is where she was when Hammett came home earlier that

afternoon. See Appendix at 1 (showing the computer room as “Bedroom #2,” the

first door in the hall on the right); id. at 10, 16 (photographs of the hallway and

computer room). Van Cleve and Hammett were sitting in the computer room

talking when they heard the officers announce “Paulding County Sheriff’s Office,

search warrant.” The announcement sounded as if it came from the carport area. 7

Van Cleve and Hammett sat in the computer room for thirty seconds or so trying to

figure out what to do. Then, Hammett got up and went out into the hallway while

Van Cleve dashed straight across the corridor to the bathroom, intending to flush

her meth down the toilet. She heard a male voice say “show me your hands” and

       6
        Though she did not specifically remember doing so, she also agreed she had possibly
used cannabis that day as well, since a pipe containing half-smoked marijuana was found in the
computer room.
       7
       In her deposition, Van Cleve does not recall how many times she heard the police
announce their presence.


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“put your hands in the air.” Van Cleve’s deposition testimony is confusing,

perhaps because, as she admits, she was under the influence of methamphetamines

when the shooting occurred.8 It is clear, however, she agrees a total of three shots

were fired within the span of a few seconds. Van Cleve froze when she heard the

first shot, failing to dispose of her drugs.

       When the officers exited the building, Van Cleve ran back and forth between

the bathroom and the computer room in a state of shock. She was still carrying her

meth when she was placed in a patrol car outside, but she was able to free her

hands and swallow the drug while she was in the police car so that it would not be

found.

       Van Cleve’s testimony shed little light on what Hammett may have had in

his hands when he left the computer room. In an interview conducted the day of

the incident, of which the record contains only a summary, Van Cleve stated that

Hammett was holding a clipboard when he left the computer room. At her

deposition, however, she was unable to recall whether Hammett had anything in

his hands, speculating that he may still have been carrying paperwork with which

he had entered the room. When shown a picture of a bottle of pepper spray found

in the hallway after the shooting, Van Cleve neither confirmed nor denied it was


       8
        Van Cleve expressed a good deal of uncertainty as well as the inability to recollect
many of the specifics of the incident, remarking that she “spent three years trying to forget that
day.”
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Hammett’s. See id. at 20. She acknowledged Hammett owned pepper spray but

she was not sure if he had it in his hands when he went out into the hallway, and

she did not remember seeing the pepper spray in the hallway after the shooting.

             e. Clyde

      At the time of the shooting, Clyde was in his bedroom at the end of the

hallway playing video games with headphones on one ear and his bedroom door

shut. See Appendix at 1 (showing Clyde’s room as “Bedroom #3”); id. at 10, 17,

19 (photographs of the hallway, the end of the hallway, and Clyde’s room). He

had come home from school about forty-five minutes earlier and gone straight into

his room and closed the door. Clyde did not hear his father arrive at the house, nor

did he hear any police pull up. While he was playing, he heard a male voice yell

“Sheriff’s Office.” Clyde threw off his headphones, and then later heard a voice

say “show me your hands.” Then he heard two gunshots “one right after another,”

within a second or two of each other. He did not hear Hammett, Van Cleve, or

anyone else say anything during this time period. After hearing the shots, Clyde

opened his door and went out into the hallway. He saw Hammett lying against the

wall in the hallway next to the computer room about midway between the door

opening and the corner of the living room, with his legs toward the living room and

his head toward the bedrooms. See id. at 10 (showing a bloodstain on the right

wall of the hallway). Clyde did not see anything in his father’s hands. Hammett


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was not able to say anything to Clyde. Clyde saw blood coming from his father’s

shirt, so he knew he had been shot. At that point, because he was scared, Clyde

returned to his bedroom. He later emerged at the command of a police officer, and

was briefly placed into custody.

      Clyde confirmed that Hammett usually carried a can of pepper spray for use

in his repossession work and that he would keep the pepper spray in his pocket.

He also agreed that the can of pepper spray shown in the incident photographs was

Hammett’s and that it was found by Hammett’s body, though he did not see it there

when he first went into the hallway. See id. at 20.

      2. Other evidence

             a. Facts pertaining to Mayfield

      The parties agree the single shot Mayfield fired did not strike Hammett and

was discharged after Hammett had already been hit by the first two bullets.

Mayfield was part of the search team and entered the kitchen from the carport

behind Horsley and Whitener. As Mayfield followed Horsley and Whitener into

the building, Mayfield got “hung up” in the doorway between the kitchen and the

living room, in which a blanket was hanging. See Appendix at 7–8 (showing the

blanket on the floor and the doorway in which it was hung). Mayfield heard two

gunshots and then turned and saw Horsley fall to the ground. He believed Horsley

had been hit. After he heard the shots fired, he discharged one round from the


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kitchen in the general direction of the perceived threat, though he did not see

Hammett and did not know who had fired the two shots. His bullet was never

recovered, though there is some evidence that it may have actually struck the back

of Whitener’s bullet-proof vest.

               b. The autopsy report

      Hammett’s autopsy report shows that although shorter than average,

Hammett was a large man. He stood five feet six inches tall and weighed 241

pounds. The report describes two wounds. The fatal wound was a gunshot to the

torso. The wound of entrance was found on the back-left side of the torso, eight

centimeters to the left of the midline and fifty-three centimeters from the top of the

head. The bullet followed a left-to-right, back-to-front and slightly downward

direction through Hammett’s torso. The projectile did not exit the body, but

caused a bruise on Hammett’s abdomen three centimeters to the right of the

midline and fifty-eight centimeters from the top of the head. The second wound

was a grazing laceration on the lateral aspect of the left index finger, also caused

by a bullet.

               c. Certain material facts on which the parties agree

      The parties agree that three shots were fired: one by Horsley, one by

Whitener, and one by Mayfield. All agree Mayfield’s shot was the last of the three

and did not strike Hammett. The parties also agree the first shot grazed Hammett’s


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left index finger and lodged in the wall next to the bathroom door frame fifty-two

inches above the floor. See Appendix at 21. Nor is there any dispute that the

second shot entered the back-left side of Hammett’s torso and killed him. 9

E. Procedural History

       Plaintiff brought this suit as the administrator of Hammett’s estate against

Horsley, Whitener, and Mayfield, as well as Paulding County and the City of

Dallas, Georgia, and certain other defendants. He alleged violations of the Fourth

Amendment and asserted state law tort claims. The district court granted summary

judgment to the defendants on all claims. The court determined the actions of

Horsley and Whitener were objectively reasonable in light of the circumstances

and therefore granted qualified immunity. It also determined that Mayfield was

entitled to summary judgment because his bullet did not strike Hammett, so

Mayfield did not seize Hammett within the meaning of the Fourth Amendment.

The court did not address whether the law was clearly established in either case

because it found no violations in the first place. Plaintiff appeals the judgment of

the district court only with respect to his Fourth Amendment excessive force

claims against Horsley, Whitener, and Mayfield, contending the district court erred

in granting qualified immunity.



       9
       The ballistics report was inconclusive as to which gun fired the bullet that struck
Hammett in the back.
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                          II. STANDARD OF REVIEW

      We review the district court’s grant of qualified immunity to Horsley,

Whitener, and Mayfield de novo. Dukes v. Deaton, 852 F.3d 1035, 1041 (11th Cir.

2017), petition for cert. filed, 85 U.S.L.W. 3543 (U.S. Apr. 26, 2017) (No. 16-

1299).

                                III. DISCUSSION

A. Qualified Immunity Generally

      The Supreme Court has long held that government officials are entitled to a

form of immunity from civil suits for damages. See Nixon v. Fitzgerald, 457 U.S.

731, 744, 102 S. Ct. 2690, 2698 (1982). It has often recognized that immunity,

whether qualified or absolute, is rooted in the long tradition of the common law.

See Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S. Ct. 2727, 2732 (1982); Nixon,

457 U.S. at 744, 102 S. Ct. at 2698; see also Spalding v. Vilas, 161 U.S. 483, 494,

16 S. Ct. 631, 635–36 (1896). As the Court recently explained,

      At common law, government actors were afforded certain protections
      from liability, based on the reasoning that “the public good can best
      be secured by allowing officers charged with the duty of deciding
      upon the rights of others, to act upon their own free, unbiased
      convictions, uninfluenced by any apprehensions.”

Filarsky v. Delia, 566 U.S. 377, 383, 132 S. Ct. 1657, 1661–62 (2012) (quoting

Wasson v. Mitchell, 18 Iowa 153, 155–56 (1864)). The same considerations of the

public good that motivated common law protections have driven the development


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of official immunity even as it has evolved beyond the contours of the common

law. See Spalding, 161 U.S. at 498, 16 S. Ct. at 637 (“It would seriously cripple

the proper and effective administration of public affairs as intrusted to the

executive branch of the government, if he were subjected to any such restraint [as a

civil suit for damages].”); Anderson v. Creighton, 483 U.S. 635, 644–45, 107 S. Ct.

3034, 3041–42 (1987) (“Although it is true that we have observed that our

determinations as to the scope of official immunity are made in the light of the

common-law tradition, we have never suggested that the precise contours of

official immunity can and should be slavishly derived from the often arcane rules

of the common law.” (citation and quotation omitted)).

      The prudential judgment embodied in qualified immunity represents a

“balance between . . . evils” in the protection of the citizenry. Harlow, 457 U.S. at

813, 102 S. Ct. at 2736. On the one hand, permitting injured citizens to sue for

damages “may offer the only realistic avenue for vindication of constitutional

guarantees.” Id. On the other, it is essential that the law protect public officials so

that they can “carry out their discretionary duties without the fear of personal

liability or harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002). The satisfaction of individual grievances must be balanced against the

societal harm that would result from allowing lawsuits to proceed against public

servants unchecked. In service of this end, the doctrine permits officials to


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faithfully perform their duties without being second-guessed. It “recognizes the

problems that government officials like police officers face in performing their

jobs in dynamic and sometimes perilous situations.” Merricks v. Adkisson, 785

F.3d 553, 558 (11th Cir. 2015). The individual benefit to an officer is both

prospective and retrospective. Before any alleged civil rights violation occurs, a

police officer is free to address the needs of situations as they arise in the course of

his duties unfettered by excessive liability concerns. If, however, the official has

been involved in an incident that could give rise to liability, qualified immunity

ensures only meritorious claims will proceed to trial so that the officer can

continue to serve the public unimpeded. This is an important virtue of a robust

qualified immunity standard because “a pending civil rights lawsuit is a sword of

Damocles . . . seriously impeding the official in the performance of his

duties.” Green v. Brantley, 941 F.2d 1146, 1150 (11th Cir. 1991) (en banc).

“Avoidance of distraction to public officials [is] one of the main purposes of the

qualified immunity doctrine.” Id.

      So strong is the public interest in protecting government officials in the

reasonable discharge of their duties that such officials are insulated not only from

damages, but even from the costs of going to trial; for this reason, in most

instances interlocutory appeal of district court decisions denying qualified

immunity is permitted. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789,


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1793 (1991) (“One of the purposes of immunity, absolute or qualified, is to spare a

defendant not only unwarranted liability, but unwarranted demands customarily

imposed upon those defending a long drawn out lawsuit.”); Mitchell v. Forsyth,

472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985) (“[Qualified immunity] is an

immunity from suit rather than a mere defense to liability; and like an absolute

immunity, it is effectively lost if a case is erroneously permitted to go to trial.”).

Indeed, in Harlow v. Fitzgerald, the Supreme Court refashioned the qualified

immunity standard with the express intention of reducing the number of suits that

would go to trial; it did so by ceasing to inquire as to the officer’s subjective state

of mind and instead measuring the conduct against an objective reasonableness

standard. Harlow, 457 U.S. at 815–16, 102 S. Ct. at 2737 (“The subjective

element of the good-faith defense frequently has proved incompatible with our

admonition . . . that insubstantial claims should not proceed to trial.”); cf. Merricks,

785 F.3d at 558 (“[Qualified immunity] is also designed . . . to provide a direct

way to end insubstantial claims on summary judgment.”).

      Although these safeguards work to the benefit of individual officers, they

exist for the sole purpose of protecting the public at large. Indeed, suits against

officials “frequently run against the innocent as well as the guilty—at a cost not

only to the defendant officials, but to society as a whole.” Harlow, 457 U.S. at

814, 102 S. Ct. at 2736.


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      These social costs include the expenses of litigation, the diversion of
      official energy from pressing public issues, and the deterrence of able
      citizens from acceptance of public office. Finally, there is the danger
      that fear of being sued will “dampen the ardor of all but the most
      resolute, or the most irresponsible [public officials], in the unflinching
      discharge of their duties.”

Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). In sum, a

balance must be struck between the harm to individuals aggrieved by official

misconduct and the harm to society resulting from a shackled executive apparatus.

Qualified immunity is the path the courts have chosen.

B. Excessive Force

      The origins and purposes of qualified immunity remind us that although the

circumstances of a case may be singularly unfortunate, regrettable facts do not

automatically spell personal liability for police officers. We are bound to apply the

reasonableness standard set forth by the Supreme Court and this Court.

      In the present litigation, there is no dispute the officers’ conduct was

discretionary, so Plaintiff must show the officers violated Hammett’s constitutional

right and that the right was clearly established at the time. See Perez v.

Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016). We need not address the

question of clearly established law because Plaintiff has not shown a constitutional

right was violated. Thus qualified immunity turns on whether the officers used

excessive force, as alleged.



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      “Any claim that a law enforcement officer used excessive force—whether

deadly or not—during a seizure of a free citizen must be analyzed under the Fourth

Amendment’s ‘reasonableness’ standard.” Garczynski v. Bradshaw, 573 F.3d

1158, 1166 (11th Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.

Ct. 1865, 1871 (1989)). Determining whether the force used is reasonable

“requires balancing of the individual’s Fourth Amendment interests against the

relevant government interests.” Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539,

1546 (2017) (citing Graham, 490 U.S. at 396, 109 S. Ct. at 1871). “The operative

question in excessive force cases is ‘whether the totality of the circumstances

justifie[s] a particular sort of search or seizure.’” Id. (quoting Tennessee v. Garner,

471 U.S. 1, 8–9, 105 S. Ct. 1694, 1700 (1985)). As the Supreme Court recently

summarized,

      The reasonableness of the use of force is evaluated under an objective
      inquiry that pays careful attention to the facts and circumstances of
      each particular case. And the ‘reasonableness’ of a particular use of
      force must be judged from the perspective of a reasonable officer on
      the scene, rather than with the 20/20 vision of hindsight. Excessive
      force claims . . . are evaluated for objective reasonableness based
      upon the information the officers had when the conduct occurred.
      That inquiry is dispositive: When an officer carries out a seizure that
      is reasonable, taking into account all relevant circumstances, there is
      no valid excessive force claim.

Id. at 1546–47 (citations and quotations omitted). Reasonableness is the

touchstone for all excessive force claims, regardless of whether the force used was

deadly. See Garczynski, 573 F.3d at 1166. “As to deadly force, a police officer
                                          23
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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.”

Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015). “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.’”

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

also Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (“In the deadly

force context, we have observed that a police officer may constitutionally use

deadly force when the officer . . . has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others . . . .”

(quotation omitted)).

      1. Horsley and Whitener

      Plaintiff’s sole argument with respect to Horsley and Whitener, repeated in

various forms throughout his brief, is that based on the physical evidence and

testimony taken in the light most favorable to Plaintiff, a jury could reasonably

find that Horsley and Whitener fired on Hammett without justification when he

was not a threat to them. In order to sustain this contention, Plaintiff asserts a jury

could find the following facts. First, Hammett raised his hands in surrender when

Horsley told him to do so. At that moment, Whitener fired without justification,

her bullet grazing Hammett’s left index finger. Wounded and terrified, Hammett


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turned in full retreat, at which point Horsley shot Hammett in the back in cold

blood. Plaintiff insists that the evidence supports this story. In rejecting it, he

contends, the district court resolved questions of material fact in favor of the

officers.

      If the evidence could legitimately be interpreted as Plaintiff insists it can, the

officers’ use of force might have been excessive. Plaintiff’s arguments fail,

however, because no reasonable jury could make out his theory on the evidence in

the record. Plaintiff’s attempts to show otherwise stretch the summary judgment

standard far beyond its breaking point.

      Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S. Ct. 2548, 2552 (1986). “A genuine dispute requires more than ‘some

metaphysical doubt as to the material facts.’” Garczynski, 573 F.3d at 1165

(quoting Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007)). The

fact that the record contains anything at all in support of the nonmovant’s position

is not dispositive; a “genuine” dispute requires that the evidence is such that a

reasonable jury could find for the nonmovant. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986) (“The mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient; there


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must be evidence on which the jury could reasonably find for the plaintiff.”).

Although all reasonable inferences are to be drawn in favor of the nonmoving

party, “an inference based on speculation and conjecture is not reasonable.” Ave.

CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013)

(quotation omitted).

      The Supreme Court has instructed that “[w]hen 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 that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380,

127 S. Ct. at 1776. In this case, voluminous uncontradicted evidence stands

completely at odds with Plaintiff’s theory of surrender and retreat. Taking all facts

and making all reasonable inferences in the light most favorable to Plaintiff, the

following facts remain undisputed. The officers knocked and announced before

entering the residence but no one responded. Then, while moving through the

house, they continually announced their identity and their purpose, still to no

response. Clyde confirmed he heard the police identify themselves. In addition,

Van Cleve testified and it is undisputed that she and Hammett heard the police

announce themselves and remained in the computer room for some time trying to

decide what to do. The officers moved through the house, which was very dark

even at the height of the afternoon because there were no lights on and all of the


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windows were covered with opaque materials. When Hammett came out of the

computer room, Horsley clearly and audibly ordered him to show his hands. This,

too, was confirmed by Van Cleve. Both officer eyewitnesses testified Hammett

refused to comply, and there is no evidence to suggest otherwise—Van Cleve did

not hear Hammett say anything in response to Horsley to indicate submission, nor

did Clyde or any of the other officers. Instead, Hammett aggressively approached

Horsley with an unidentified object in his hands, which he moved toward

Horsley’s face. Whether the object ultimately turned out to be Hammett’s

clipboard or his pepper spray is immaterial; in the tense and uncertain moments

leading up to the shooting, a reasonable officer could have believed it to be a

weapon, especially given dim lighting and the way Hammett handled it. Horsley

and Whitener fired in response, and regardless of who shot first, the sounds of the

gunshots occurred in rapid succession. Finally, the bullet that killed Hammett

entered the back-left side of his torso and caused a bruise on the right side of his

stomach, traveling diagonally through his body.

      None of these critical facts is disputed by affirmative evidence. Several are

inconsistent with the surrender-and-retreat theory, most obviously, the officers’

testimony that Hammett charged at Horsley. In addition, the two shots that struck

Hammett occurred in rapid succession, which would not leave time for a retreat in

the split second between them. Furthermore, if Hammett were retreating back


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down the hallway when he was shot, the bullet would have traveled straight

through him, not diagonally from left to right, which would have been impossible.

“Though factual inferences are made in [Plaintiff’s] favor, this rule applies only ‘to

the extent supportable by the record,’” Penley v. Eslinger, 605 F.3d 843, 853 (11th

Cir. 2010) (quoting Scott, 550 U.S. at 381 n.8, 127 S. Ct. at 1776 n.8), and

Plaintiff’s theory cannot be reconciled with it.

       Even if we were to set the undisputed contradictory evidence aside, the mere

fact that the record, when viewed in the light most favorable to Plaintiff, is

theoretically not inconsistent with his narrative, is not enough to survive summary

judgment. Holding all of the contrary (and uncontradicted) evidence aside,

Plaintiff has not pointed to any affirmative evidence that Hammett surrendered and

retreated.10 See Anderson, 477 U.S. at 257, 106 S. Ct. at 2514 (“[T]he plaintiff

must present affirmative evidence in order to defeat a properly supported motion

for summary judgment.”). The assertion that he did is pure speculation. See Ave.

CLO Fund, 723 F.3d at 1294. The bullet hole in the wall and the location of

Hammett’s wounds, by themselves, tell us essentially nothing about what

happened. There are infinite possible permutations that would explain how the

       10
           The tragedy of Hammett’s death is doubly regrettable insofar as he is unavailable to
testify on his own behalf. Nevertheless, as a result, evidence sufficient to defeat a motion for
summary judgment must come from other sources. Here, we have the benefit of the testimony of
Hammett’s wife and son, who were both present at the time of the incident. Still, neither of them
testified to anything that would challenge the officers’ version of the facts. In the end,
Hammett’s misfortune does nothing to change the fact that no jury could reasonably find for
Plaintiff on this evidence.
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bullets ended up where they did during the brief and chaotic scuffle that occurred.

Plaintiff is required to point to evidence that would support his theory, but he

cannot. Instead, all of the available evidence refutes it.

      Indeed, the undisputed facts show the officers did not act unreasonably.

Singletary, 804 F.3d at 1181; Garczynski, 573 F.3d at 1166. “In excessive force

cases, we are mindful that officers make split-second decisions in tough and tense

situations,” Morton, 707 F.3d at 1281, and that “the ‘reasonableness’ of a

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

on the scene, rather than with the 20/20 vision of hindsight,” Mendez, 137 S. Ct. at

1546 (quotation omitted). From this perspective, the facts show the following.

The officers entered a dark and cluttered house after knocking and announcing for

some time. As they moved through the building, they continually announced they

were from the Sheriff’s Office and they were executing a warrant, to no response.

All of the sudden, a large man appeared in the hallway, saying nothing to the

officers and giving no indication that he intended to cooperate even though the

officers knew that he must have heard their announcements. Instead, he refused to

obey their commands to show his hands, shifted an object between his hands, and

rapidly approached them, drawing the object up toward the face of the lead officer.

In the darkness, given the foregoing circumstances, the officers had probable cause




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to believe it was a weapon and that Hammett intended to use it. 11 See Perez, 809

F.3d at 1220 (holding that “the presence or absence of a weapon is a factor in this

[excessive force] analysis,” though the inquiry must nevertheless consider the

totality of the circumstances); Penley, 605 F.3d at 853 (holding that an officer had

“probable cause to believe his own life was in peril” where the suspect “was not

responding to the negotiator’s questions; he did not comply with commands to

drop his weapon; and he pointed his weapon” at the police (quotation omitted)). It

was not unreasonable of them to believe Hammett posed a threat of serious

physical harm and to respond accordingly. Singletary, 804 F.3d at 1181. We are

“loath to second-guess decisions made by police officers in the field,” Penley, 605

F.3d at 854 (quotation omitted), and we will not do so here.

       Though we acknowledge the present inquiry requires us to “slosh our way

through the factbound morass of ‘reasonableness,’” Scott, 550 U.S. at 383, 127 S.

Ct. at 1778, such that each case will be somewhat unique, there are valuable

lessons to be gleaned from our prior decisions, in particular, that of Garczynski v.

Bradshaw. There, during an encounter with his estranged wife, John Garczynski


       11
           Although we hold Horsley and Whitener had actual probable cause, they could prevail
even if they did not, for “an officer need only have arguable probable cause, not actual probable
cause, in order to qualify for immunity from a Fourth Amendment claim.” Garczynski, 573 F.3d
at 1167. That is, if the officer “reasonably could have believed that probable cause existed, in
light of the information the officer possessed,” then the officer did not commit a constitutional
violation. Id. (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)). As we have often
recognized, “the qualified immunity standard is broad enough to cover some mistaken
judgment.” Id.
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manifested an intent to kill himself, and then disappeared. Garczynski, 573 F.3d at

1161. Reaching him on the phone, his wife learned he had a gun with him and

planned to commit suicide. Garczynski’s wife contacted the police and she stayed

on the line with Garczynski trying to calm him down. Id. By triangulating the cell

phone call, the police found Garczynski’s car. Id. at 1162. Unbeknownst to the

officers at the scene, at the direction of a police officer accompanying her,

Garczynski’s wife instructed him to start the car. Id. at 1163. The police,

however, had orders not to let Garczynski leave. Id. Believing Garczynski’s

departure would create a dangerous situation, the officers ran to the car, banged on

the windows, and tried to open the passenger door, attempting to get Garczynski

out. Garczynski raised his gun, which the officers ordered him to drop. Id.

Garczynski disobeyed the command, instead swinging the gun around toward one

of the officers, at which point the police shot and killed him. Id. at 1164.

      The case has parallels to this one. There, as here, “the escalation into deadly

force was justified by [the decedent’s] refusal to comply with the officers’

commands.” Id. at 1168. Much as Horsley did in this case, in Garczynski, “[a]fter

identifying themselves, the officers repeatedly ordered Garczynski to show his

hands.” Id.

      Instead of obeying these commands, Garczynski swung the gun from
      his head in the direction of the officers, at which point they fired. The
      officers reasonably reacted to what they perceived as an immediate
      threat of serious harm to themselves. This is exactly the type of
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      “tense, uncertain and rapidly evolving” crisis envisioned by the
      Supreme Court. Judged from the perspective of a reasonable officer
      on the scene, the officers’ use of deadly force was objectively
      reasonable under the circumstances.

Id. (citation omitted). The same reasoning applies in the present analogous, though

obviously not identical, situation. The undisputed testimony establishes that, like

Garczynski, Hammett was carrying something and disobeyed an officer’s

instruction to show his hands. After refusing to show his hands, Hammett moved

aggressively toward Horsley and raised his hands rapidly toward Horsley’s face.

“Non-compliance of this sort supports the conclusion that use of deadly force was

reasonable.” Penley, 506 F.3d at 851. We acknowledge that here, unlike

Garczynski, it turned out that Hammett was not armed with a deadly weapon.

Nevertheless, we must view the situation from the perspective of a reasonable

officer in Horsley’s and Whitener’s position. See Mendez, 137 s. Ct. at 1546.

From that vantage point, after the officers repeatedly announced their presence to

no response in a dark house occupied by a known meth dealer, Hammett’s actions

easily could have appeared to be an ambush. Under these circumstances, Horsley

and Whitener had probable cause to believe Hammett posed a threat of serious

physical harm to Horsley.

      Plaintiff, relying in large part on the testimony of Rutherford, makes much

of the possibility that Whitener shot first, and insists that on the facts most

favorable to him, we must assume that she did. Plaintiff contends Whitener’s
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justification for shooting was simply that she heard a gunshot and thought Horsley

had been hit. Thus if in reality she discharged her weapon first, Plaintiff asserts,

her theory of justification “goes out the window.” Brief of Appellant at 33. To the

contrary, however, Whitener says she fired because Hammett was moving

aggressively toward Horsley, not merely because she heard a gunshot. Indeed, she

claims the entire sequence of events took place so quickly that she is not sure who

shot first. Although Whitener conceded in her deposition that she theoretically

could have shot first, fairly read, all of her testimony indicates she thinks she

discharged the second shot. Similarly, there is nothing about the fact that Horsley

may have shot second that undermines his claim that he shot because Hammett

charged at him. There is still no evidence that Hammett was submitting and

retreating when he was shot, and nothing to create a dispute of material fact. See

Garczynski, 573 F.3d at 1165 (“A genuine dispute requires more than some

metaphysical doubt as to the material facts. A mere scintilla of evidence is

insufficient; the non-moving party must produce substantial evidence in order to

defeat a motion for summary judgment.” (citation and quotation omitted)). Rather,

the evidence shows the events took place quickly and chaotically.

      In addition, Plaintiff makes much of some alleged inconsistencies between

Horsley’s and Whitener’s initial statements to the Georgia Bureau of Investigation,

their depositions taken during discovery, and their sworn declarations attached to


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their motion for summary judgment. We have difficulty identifying such

discrepancies and fail to see how they would be material in any case. But even

assuming Horsley and Whitener provided inconsistent testimony at various stages

of the proceedings, the Supreme Court has stated that “discredited testimony is not

normally considered a sufficient basis for drawing a contrary conclusion.”

Anderson, 477 U.S. at 256–57, 106 S. Ct. at 2514 (quoting Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485, 512, 104 S. Ct. 1949, 1966,

(1984)). Rather, the plaintiff must present affirmative evidence. Id. at 257, 106 S.

Ct. at 2514. Plaintiff has not done so.

      “With the plaintiff’s best case in hand, the court is able to move to the

question of whether the defendant committed the constitutional violation alleged in

the complaint without having to assess any facts in dispute.” Robinson, 415 F.3d

at 1257. The problem for Plaintiff is his best case does not involve Hammett

surrendering and retreating. The facts taken in the light most favorable to him

simply do not support it. Even where the alleged conduct would violate clearly

established law, “the defendant is entitled to summary judgment if discovery fails

to uncover evidence sufficient to create a genuine issue as to whether the defendant

in fact committed those acts.” Mitchell, 472 U.S. at 526, 105 S. Ct. at 2815.

Plaintiff has failed to uncover evidence sufficient to create a factual dispute as to

whether the officers shot Hammett without justification.


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      2. Mayfield

      Mayfield was entitled to qualified immunity as well. As noted above, there

is no dispute that Mayfield fired the third shot and that his bullet did not strike

Hammett. The parties argue over the proper interpretation of two Sixth Circuit

cases in attempting to determine whether Mayfield seized Hammett within the

meaning of the Fourth Amendment. See Floyd v. City of Detroit, 518 F.3d 398

(6th Cir. 2008); Cameron v. City of Pontiac, 813 F.2d 782 (6th Cir. 1987). If

Mayfield did not seize Hammett, it is argued, he cannot be liable for using

excessive force. The parties neglect, however, this Circuit’s law on the subject,

which is sufficient to dispose of the issue.

      We held in Carr v. Tatangelo that where police officers fire on an individual

in alleged self-defense, but do not hit him or otherwise touch him, the individual

has not been seized. 338 F.3d 1259, 1270–71 (11th Cir. 2003). In that case, an

informant led police officers to a house suspected to be occupied by drug dealers.

Id. at 1263. The informant was supposed to “have somebody come out with drugs

for the officers to arrest,” but instead he entered the house and was not seen again.

Id. As the officers lay in wait for him to reemerge, they hid behind bushes and

trees to conceal their presence. Plaintiffs Romeo Carr and Cedrick Wymbs exited

the house and Wymbs noticed movement in the bushes and the two began throwing

rocks at the area where the officers were hiding, suspicious that there were


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individuals concealed there, as indeed there were. Id. The officers claimed that

they heard someone chamber a bullet in a gun, so they opened fire on the two

individuals. Id. at 1264–65. Their bullets struck only Carr, at which point both

Carr and Wymbs fled into the house. Id. at 1265.

      Both individuals sued the police officers. Id. at 1266. We held that Wymbs

was not seized “[b]ecause [he] was not shot or physically touched by the officers.”

Id. at 1270–71. As such, he did not have a claim for excessive force under the

Fourth Amendment. Rather, Wymbs’ claim was properly analyzed as a Fourteenth

Amendment substantive due process claim. Id. To prevail on that cause of action,

a plaintiff is required to show an “executive abuse of power” that “shocks the

conscience.” Id. at 1271 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846,

118 S. Ct. 1708, 1717 (1998)). Though ultimately we employed a reasonableness

analysis “[s]imilar to the standard used to evaluate Fourth Amendment excessive

force claims,” id. (quoting Jones v. City of Dothan, 121 F.3d 1456, 1461 (11th Cir.

1997) (per curiam)), Wymbs bore “a higher burden to show a violation of

substantive due process under the Fourteenth Amendment,” id. at 1272. We held

Wymbs had not met it and granted qualified immunity on his claims. Id. at 1273–

74.

      Plaintiff has not recognized, much less attempted to meet, this heightened

burden with respect to Mayfield, and in any event he could not. Mayfield thought


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his fellow officers were under fire, having heard first Horsley’s commands that

Hammett show his hands, without any response indicating submission, and then

two quick bursts of gunfire. A reasonable officer in the situation would have

probable cause to believe that the lives of his fellow policemen were in danger.

There is no need to resort to foreign case law to find that Mayfield is entitled to

qualified immunity.

                                 IV. CONCLUSION

       Hammett’s death is undoubtedly tragic. However, qualified immunity exists

to protect public servants in precisely these circumstances. After discovery,

Plaintiff has produced no evidence that suggests the “split-second judgments” of

Horsley, Whitener, or Mayfield violated the Fourth Amendment as they responded

to the “tense, uncertain, and rapidly evolving” events of that day. Graham, 490

U.S. at 397, 109 S. Ct. at 1872. Summary judgment was appropriate, and they are

to be spared the burden of defending themselves at trial. The judgment of the

district court is

       AFFIRMED.




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WILLIAMS, District Judge, Dissenting in Part:


          On October 17, 2012, the police entered Brenda Van Cleve’s home to

execute a search warrant. The officers were informed during the pre-execution

briefing that there were no known weapons or threats within the residence. Once

inside, Officers Rutherford, Horsley, and Whitener proceeded to the living room,

where they encountered Van Cleve’s husband, Daniel Hammett. Fifteen to thirty

seconds later, Hammett—who was unarmed and not the subject of the search

warrant or a target in the underlying investigation—was dead, shot once in the

hand and then fatally in the back. Those are the undisputed facts of this case. 1 The

question before the Court is whether the Defendant Officers’2 decision to use

deadly force was objectively reasonable based on the circumstances of this case,

when the evidence available is viewed in the light most favorable to the Plaintiff.

See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (“[i]n conducting de


1
    Although the majority includes a 16-page summary of some of the testimony given in this case,
    the section entitled “Certain material facts on which the Parties agree” is a mere four sentences
    long, and relates only to the number of shots fired and the trajectory of the bullets from those
    shots.
2
    Though I dissent with regard to the grant of summary judgment on Hammett’s fourth-
    amendment claims against officers Whitener and Horsley, I agree with the majority that the
    district court should be affirmed as to Hammett’s claims against Officer Mayfield. The facts
    regarding Mayfield’s conduct are troubling—particularly his own testimony that he heard
    gunshots and then blindly discharged his weapon in a dark house where methamphetamine was
    being sold and the fact that, by all indications, his bullet struck Officer Whitener—but there is
    no evidence that the bullet he fired struck Hammett, or that his actions otherwise contributed to
    Hammett’s death. Therefore Hammett’s claims against Mayfield fail as a matter of law.


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novo review of the district court's disposition of a summary judgment motion based

on qualified immunity, we are required to resolve all issues of material fact in

favor of the plaintiff.”); Thornton v. City of Macon, 132 F.3d 1395, 1397 (11th

Cir.1998) (After taking the facts in the light most favorable to Plaintiff “[w]e . . .

answer the legal question of whether the defendant[ ][is] entitled to qualified

immunity under that version of the facts.”).

          The evidence in this case does not conclusively establish what took place in

the moments leading up to the shooting of Hammett. 3 But Plaintiff argues that,

under the most favorable interpretation of the evidence presented, a reasonable jury

could make the following findings that would defeat summary judgment. I agree.

                               Disputed Issues of Material Fact

             A. The Manner in Which Hammett Approached The Officers

          First, a jury could find that Hammett did not pose an immediate threat that

would justify the use of deadly force as he approached the officers. Officer

Horsley testified that when the officers entered the living room and announced

their presence, Hammett exited one of the bedrooms, “walk[ed] out in the hall and

stopped for a second.” He then started walking down the hallway quickly toward

the officers. Specifically, Horsley recalled that “[i]t appeared that he was trying,
3
    The order entered by the district court below acknowledges in multiple footnotes that there may
    be material issues of fact remaining about the events in question and that resolving those issues
    of fact would require the court to make credibility determinations that are not permitted on
    summary judgment. Nonetheless, the district court went on to conclude that summary
    judgment was appropriate.
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instead of coming straight at me, he was trying to get to one side or the other” and

that he “couldn’t remember” if Hammett was still advancing towards him when

Hammett raised his hands.4 Whitener similarly testified that Hammett “walked at

a fast pace” down the hallway toward the officers.

         Horsley went on to state that, as Hammett approached, he took a step toward

Hammett with his gun at “high ready” to “try to engage him,” and instructed

Hammett to put up his hands. He then lowered his gun slightly as he reached for

Hammett, at which point Hammett raised his hands. Whitener also observed that

Horsley was “grabbing towards Mr. Hammett’s hands” when Hammett’s hands

“came up.” When asked whether, “as the hands came up, [she saw] . . . clenched

fists or [ . . .] actually s[aw] an object,” Whitener said “No. I couldn’t—I don't

know. I didn't see any specific clenched fist or—I don't know if I—I don't really

recall if I saw anything, if it was—because it was dark.”

         With regard to the manner in which Hammett raised his hands, Officer

Whitener testified that she thought that both of Hammett’s hands were up. Officer

Horsley acknowledged that Hammett raised his right hand but testified that he does

not recall what Hammett was doing with his left hand. The forensic evidence,

however, shows that the first bullet fired at Hammett grazed the lateral side of

4
    The officers involved in the shooting of Hammett described the hallway as narrow, and a
    diagram included in the GBI file from this incident indicated that the hallways was only 15 feet
    long, and 3 feet wide. The photographs of the crime scene similarly indicate that the hallway
    in which Hammett was shot was short and narrow.
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Hammett’s left index finger but did not strike his body and lodged in the wall 52

inches above the ground. According to Hammett’s driver’s license he was five feet

two inches (62 inches) tall. 5 Based on this evidence, a reasonable jury could find

that when Hammett approached Horsley his hands were up—at least 52 inches

above the ground—in seeming compliance with Officer Horsley’s instructions.6

              B. The Object in Hammett’s Hand

          Second, a jury could find that Hammett was unarmed, and that the officers

did not believe that Hammett had a deadly weapon in his hand at the time they shot

him. Horsley stated that, once Hammett exited the bedroom, he saw Hammett

move something from his left hand to his right. He was shining his flashlight at

Hammett’s hands but “was not able to see an object in his hand at that point.”

Whitener also stated that “[d]uring th[at] time, [she] didn’t know what was in

Hammett’s hand” and, moreover, that she couldn’t recall if she “could tell if he had

an object and was holding his hands like he had something in his hands.” Initially,

Horsley thought Hammett had drugs in his hand. During Horsley’s deposition he

5
    Horsley and Whitener testified that Hammett’s hands were brought up to the level of Horsley’s
    face. The record demonstrates that Officer Horsley is six feet two inches (74 inches) tall,
    twelve inches taller than Hammett and twenty-two inches taller than the height at which the
    bullet entered the wall.
6
    Horsley’s opinion that Hammett was “absolutely not” attempting to comply with his commands
    in raising his hands because “if [Hammett] was going to comply he would comply”
    immediately and “every time [Horsley has] ever dealt with somebody that was compliant,
    that’s the way it happened” does not rebut Plaintiff’s position or eliminate this factual dispute.
    It creates, at best, an issue of fact for the jury regarding the credibility and weight that should
    be afforded to such opinion and conjecture.
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explained, “I’m giving him commands, and I’m like, well, maybe he’s got dope in

his hand, maybe he’s going to the bathroom to flush them.” Later on in his

deposition, Horsley stated that “milliseconds before [he] fired” he saw “a shiny

black object” in Hammett’s hand. Horsley stated that he believed the “shiny black

object” was a can of pepper spray, which the officers were trained to recognize.7

Both Officer Whitener and Officer Horsley acknowledged their awareness of and

training on the Paulding County Sheriff Office’s “Use of Force” policy, 8 and their

understanding that the use of pepper spray does not constitute deadly force under

that policy. A reasonable jury could therefore find on this record that Officers

Whitener and Horsley shot at Hammett when they believed that he had either drugs

or a canister of pepper spray, despite the fact that the presence of drugs or pepper

spray is insufficient under department policy to warrant the use of deadly force.


7
    Compounding the myriad inconsistencies in the record are the following non-testimonial
    accounts of what took place immediately before Hammett was shot. In an affidavit filed in
    support of a search warrant on October 17, 2012, Sergeant Mike Hill stated that Hammett
    “removed an item that was later determined to be pepper spray without delay and sprayed
    Agent Horsley in the face,” which led Horsley to shoot him. The CAD police call log relating
    to the search warrant’s execution also notes that an officer was sprayed in the face with pepper
    spray. On the other hand, Horsley stated that he was not pepper sprayed by Hammett, and a
    press release issued by the Paulding County Sheriff’s Office on October 18, 2012 identified the
    “shiny black object” in Hammett’s hand as a canister of pepper spray, but made no mention of
    any offensive use of the pepper spray against the officers.
8
    The policy states that “officers shall not use deadly force to seize an unarmed, non-dangerous
    subject” and that “they may use deadly force … only when the officer reasonably believes that
    the suspect possesses a deadly weapon or any object which, when used offensively against a
    person, is likely to or actually does result in serious bodily injury.” The policy classifies the
    use of pepper spray as “Non-Deadly Force” and a “soft physical technique.”

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         C. The Order of the Shots Fired at Hammett

      Third, a reasonable jury could find that Whitener fired the first shot, which

grazed Hammett’s index finger, and that Horsley fired the second shot into

Hammett’s back after Hammett had turned away from the officers. This finding is

supported by both the autopsy report and by Officer Rutherford’s testimony. The

district court found that Officer Rutherford’s testimony did not conflict with the

testimony of Officers Horsley and Whitener because “Officer Rutherford testified

that Defendant Horsley fell after the second shot that Officer Rutherford heard”

and since “Officer Rutherford did not even know three shots were fired . . . it is

unknown which two of the three shots he heard.” Regardless of which two shots

Officer Rutherford heard, however, his testimony necessarily precludes a reading

wherein Horsley shot first and had fallen before any shots were fired by Whitener.

      While the majority accepts that Rutherford’s testimony could support

Plaintiff’s contention that Whitener shot first and Horsley second, they maintain

that this does not vitiate Whitener’s claim that her actions were reasonable

because—although Whitener initially said that she fired her gun at Hammett when

she saw Horsley fall and thought he had been shot—she later said that it was

because she saw Hammett move toward Horsley. A reasonable jury could find,

however, that shooting a civilian merely because an officer sees him “move

toward” a fellow officer, is not objectively reasonable. There is ample caselaw in


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our circuit to support that proposition. See, e.g., Felio v. Hyatt, 639 F. App’x 604,

608-09 (11th Cir. 2016) (reversal of a grant of summary judgment on the use of

excessive force when a suspected perpetrator on a report of domestic violence—

who was engaged in a physical struggle with an officer and was reaching for his

gun—was fatally shot in the abdomen, even though “the officers testified that it

was a ‘dynamic’ scene and only a couple seconds passed between [the decedent]

reaching for [the officer’s] gun and [the officer’s] firing”); Salvato v. Miley, 790

F.3d 1286, 1290 (11th Cir. 2015) (affirming a denial of summary judgment on the

use of excessive force when the police shot a man who resisted arrest, exchanging

blows with the officers, then broke free and “rush[ed] towards” the officers and

began hitting them again, hitting one officer in the head and knocking her to the

ground).

         As for Horsley, a reasonable jury could find that the location of the entry

wound on Hammett’s lower back supports a finding that any perceived threat had

abated by the time the second shot was fired, making the use of deadly force

unreasonable. Hammett—who, by all accounts, had been facing Horsley head-on

when the first shot was fired—somehow had his back to the officers seconds later

when the second shot entered his body. 9 The short temporal window in which the


9
    I do not understand the basis for the majority’s statement that “if Hammett were retreating back
    down the hallway when he was shot, the bullet would have traveled straight through him, not
    diagonally from left to right, which would have been impossible.” The record does not contain
                                                 44
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shots were fired therefore does not militate against the conclusion that the use of

deadly force was unjustified.10

                                            Conclusion

          Taken together, these factual findings could support a legal conclusion that

the Defendant Officers acted unreasonably in employing deadly force.                           The

majority concedes this point, acknowledging that “[i]f the evidence could

legitimately be interpreted as Plaintiff insists it can, the officers’ use of force might

have been excessive.” They maintain, however, that no such interpretation or

reasonable inference can be made. This is not the case. To the contrary, the

factual findings outlined here, and by the Plaintiff below, are supported by the

forensic and testimonial evidence in the record, by far more than a “scintilla” as the

majority dismissively suggests. Because that is the case, the district court erred in

granting summary judgment to Defendants Whitener and Horsley.




     any support for this statement. In fact, given that Officer Horsley was positioned “facing
     [Hammett] slightly to the left” and Officer Whitener was positioned “on the right side of the
     hall” it seems highly unlikely that a shot from either would pass straight through him. This
     interpretation of course—like the majority’s statement—is pure speculation.
10
      Moreover, the majority’s assertion that “Plaintiff has not pointed to any affirmative evidence
     that Hammett surrendered and retreated” is irrelevant to a determination of whether summary
     judgment is warranted if there was no threat to the officers that would warrant the use of
     deadly force. Reducing the question before the Court to one of whether Plaintiff has proven
     that Hammett surrendered and retreated unduly broadens the protections of the qualified
     immunity doctrine and turns the summary judgment standard on its head.


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            I concede that the majority presents a feasible explanation of the events of

October 17, 2012, but that recitation is neither the only reasonable interpretation of

the evidence nor the interpretation most favorable to the Plaintiff.11 In holding

otherwise, the majority has followed the same path as the district court below: they

have weighed the evidence and made credibility determinations that fall squarely

within the purview of a jury. It may well be that a jury finds that the subsequent

statements of the officers are more persuasive than the initial statements, or that

they credit the police officers’ account and find it consistent with the forensic

evidence. That does not change the fact, however, that, at the summary judgment

stage, the evidence must be construed in the light most favorable to the non-

movant, regardless of whether the court feels that one party’s version of events is

more credible than the other’s. Lee, 284 F.3d at 1190 (citing Priester v. City of

Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir.2000) (“[T]his Court has

repeatedly stressed [that] the ‘facts, as accepted at the summary judgment stage of

the proceedings, may not be the actual facts of the case.’”); Skrtich v.
11
      The majority’s summary of the testimony in this case fails to acknowledge the highly material
     inconsistencies between the statements given by the officers in their initial GBI interviews,
     their depositions, and their declarations submitted in support of summary judgment. The case
     cited for the proposition that those statements cannot form genuine issues of material fact is
     inapposite because this case—unlike Anderson, which involved libel charges and “discredited”
     statements—involves multiple statements by the Defendants that have materially changed in
     the nearly four years between the incident and the most recent declarations given in support of
     their motions for summary judgment. Each statement is “affirmative evidence.” The Court
     should not credit one and discredit another, but it should allow Plaintiff to rely on the earlier
     statements just as it allows Defendants to rely on the later ones. Any comparative credibility
     determinations should be made by a jury at trial, in conjunction with forensic and other
     testimonial evidence.
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Thornton, 280 F.3d 1295, 1299 (11th Cir.2002)) (“Nevertheless, for summary

judgment purposes, our analysis must begin with a description of the facts in the

light most favorable to the plaintiff.”).

      Finally, I feel compelled to make an additional observation regarding the

majority’s decision today. I am concerned by the implications of the majority’s

view that Plaintiff’s claim is undermined by the absence of opposing eyewitness

testimony. By characterizing Plaintiff’s legitimate interpretation of the physical

and forensic evidence as “pure speculation” and “disputed by affirmative evidence

. . . most obviously, the officers’ testimony,” the majority concludes that Plaintiff’s

interpretation of the physical evidence amounts to conjecture. Granting summary

judgment on qualified immunity under these facts therefore sets up a paradigm

where, no matter how many inconsistent accounts of an incident an officer gives

and no matter what viable theory is supported by forensic evidence, a fourth-

amendment claim arising out of a deadly shooting will never survive summary

judgment, unless a third-party eye-witness can support Plaintiff’s narrative or the

plaintiff survives the shooting. This cannot be the evidentiary standard in qualified

immunity cases.

      In circumstances where, as here, the evidence creates a genuine issue of

material fact regarding the conduct of police officers during a deadly shooting, the

case should go to trial, where both sides will have a full and fair opportunity to


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present their best evidence to a jury. That jury—and not this Court or the district

court below—should then weigh the evidence, make factual findings, and

determine the outcome of this case. For that reason, I respectfully dissent.




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                                                                 USCA 1496
