                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 07-11151                ELEVENTH CIRCUIT
                                                             OCTOBER 5, 2007
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                  D.C. Docket No. 06-00362-CV-4-RH-WCS

SUZANNE HARRELL,

                                                       Plaintiff-Appellee,

                                     versus

JAMES GOODMAN,

                                                       Defendant-Appellant.

                         ________________________

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

                                (October 5, 2007)

Before BLACK, MARCUS and COX, Circuit Judges.

PER CURIAM:

      James Goodman appeals the district court’s denial of his motion for summary

judgment grounded upon qualified immunity. He contends that his actions did not
violate the Constitution, but even if they did, the law was not so clearly established

as to make it obvious that his actions violated federal law.

       The facts are disputed. We exercise our discretion to accept the district court’s

recitation of the facts for summary judgment purposes. See Gonzalez v. Lee County

Hous. Auth., 161 F.3d 1290, 1294 (11th Cir. 1998).

       Having considered the briefs and the relevant parts of the record, we find no

reversible error in the district court’s determination that, viewing the facts in the light

most favorable to Harrell, the use of deadly force was unwarranted and violated

clearly established law. Summary judgment was properly denied because the fact-

finder could conclude that Harrell did not “pose[] a threat of serious physical harm,

either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct.

1694, 1701 (1985). Thus, the use of deadly force was not justified. And, Harrell’s

state court convictions do not establish Goodman’s qualified immunity defense for

the reasons stated by the district court. (R.1-23 at 8, 9.)

       The issue of qualified immunity remains in the case and will have to be

addressed at trial. We decide only that Goodman is not due summary judgment on

this record.

       AFFIRMED.




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