              Case: 14-12875     Date Filed: 01/05/2015   Page: 1 of 11


                                                                 [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-12875
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8-12-cv-00550-MSS-AEP



PEDRO QUILES, SR.,
as personal representative of the Estate of Pedro Quiles, Jr.,
PEDRO QUILES, SR.,
on behalf of himself individually,
PEDRO QUILES, SR.,
on behalf of minors, P.Q-S and B.Q., survivors,

                                                                  Plaintiffs-Appellees,

                                        versus

CITY OF TAMPA POLICE DEPARTMENT, et al.,

                                                                          Defendants,

SCOTT SAVITT, individually and his capacity as an
Officer of the City of Tampa,


                                                                 Defendant-Appellant.
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                            ________________________

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

                                   (January 5, 2015)



Before JULIE CARNES, FAY, and EDMONDSON, Circuit Judges.



PER CURIAM:



        In this interlocutory appeal, Defendant Officer Scott Savitt challenges the

district court’s denial of his motion for summary judgment. Officer Savitt

contends that he is entitled to qualified immunity from Plaintiff’s 42 U.S.C. § 1983

action. Reversible error has been shown; we reverse the denial and remand the

case.

        This case arises from the 2011 fatal shooting of Pedro Quiles, Jr. during a

traffic stop. On the day of the incident, Officer Cain stopped Quiles for driving

recklessly. When asked for his identification, Quiles gave Officer Cain a driver’s

license with the name “Alex Perez.” After discovering that Perez’s driver’s license

was suspended and that Perez had earlier citations for traffic violations, Officer

Cain decided to arrest Quiles, whom Officer Cain believed to be Perez. Before



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Officer Cain initiated the arrest, Officer Savitt responded to the scene to serve as

back up.

       When Officers Cain and Savitt asked Quiles to step out of the car, Quiles

started to run. But Officers Cain and Savitt grabbed Quiles and pulled him back

toward the car. Quiles then struggled physically with Officer Cain. The two men

fell to the ground (with Quiles on top of Officer Cain) and continued to struggle for

a few seconds. Officer Cain then got up into a kneeling position and, while

holding onto Quiles’s shirt, delivered a knee strike to Quiles’s head. Quiles freed

himself from Officer Cain’s grasp by pulling backwards out of Quiles’s shirt, and

he started to run away. Officer Savitt then fired two shots at Quiles; Quiles was hit

and died as a result. 1

       Although the parties disagree about what was said exactly during the

altercation, the parties agree that, when Officer Cain and Quiles were fighting on

the ground, one of the officers began saying something about a gun. Viewed in the

light most favorable to Plaintiff, the evidence shows that one of the officers began

saying “watch your gun, watch your gun,” while it appeared as though that officer

(Officer Savitt) was trying to protect the other officer’s (Officer Cain’s) gun. And,




1
 The events leading up to the shooting were captured on Officer Cain’s dash camera, but no
audio recording exists. About 17 seconds elapsed from the time Quiles first exited the car to the
moment that Officer Savitt fired his weapon.


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according to one witness, neither officer warned Quiles that they would shoot if he

did not stop.

       Plaintiff, representing Quiles’s estate, filed this civil action alleging that

Officer Savitt used excessive force, in violation of the Fourth Amendment. 2 The

district court denied Officer Savitt’s motion for summary judgment: a motion

based on qualified immunity. From the record, the district court determined that

Officer Savitt believed reasonably that Quiles had taken Officer Cain’s gun during

the struggle and that Savitt had probable cause to believe Quiles -- “armed and

dangerous,” to use the district court’s words -- posed a threat of serious physical

harm to the officers and to others. But the district court denied qualified immunity

based solely on the court’s determination that the officers failed to warn Quiles

about the possible use of deadly force against him and that such a warning was

feasible.3

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

qualified immunity. Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). In


2
 Plaintiff also named as Defendants Officer Cain, the Chief of Police, and the City of Tampa.
These Defendants are not parties to this appeal.
3
  The parties dispute whether the officers in fact warned Quiles about the use of deadly force.
Viewing the evidence in the light most favorable to the Plaintiff -- as the district court was
required to do for purposes of ruling on a summary judgment motion -- the court concluded that
no warning was issued. The court then treated the officers’ testimony that they gave a warning
as a concession that a warning was in fact feasible. On appeal, Officer Savitt challenges the
district court’s treatment of his testimony as a “concession.” Because we decide the appeal on
other grounds, we do not decide this issue.


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determining whether summary judgment is appropriate, we must view all the

evidence and draw all reasonable inferences in the light most favorable to the

nonmoving party. Id.

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). To

avoid summary judgment based on qualified immunity, Plaintiff must show both

that Officer Savitt violated a federal right and that the right was already clearly

established when Officer Savitt acted. See id. “When properly applied, [qualified

immunity] protects ‘all but the plainly incompetent or those who knowingly violate

the law.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011).

      A federal right is “clearly established” when “the contours of [the] right are

sufficiently clear that every reasonable official would have understood that what he

is doing violates that right.” Id. at 2083 (quotations omitted). “We do not require

a case directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Id.; Lane v. Franks, 134 S.Ct. 2369, 2374

(2014). We mean beyond debate given the circumstances: “the specific context of

the case.” See Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001).




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      “Although suspects have a right to be free from force that is excessive, they

are not protected against a use of force that is necessary in the situation at hand.”

Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotations

omitted). And “the right to make an arrest or investigatory stop necessarily carries

with it the right to use some degree of physical coercion or threat thereof to effect

it.” Graham v. Connor, 109 S.Ct. 1865, 1871-72 (1989).

      No precise test or “rigid preconditions” exist for determining when an

officer’s use of deadly force is excessive. See Scott v. Harris, 127 S.Ct. 1769,

1777 (2007). Instead, in determining whether the Fourth Amendment was

violated, “we must still slosh our way through the factbound morass of

‘reasonableness.’” Id. at 1778.

      Thus, in deciding the merits of a claim of excessive force, we must

determine whether, given all the facts and circumstances of a particular case, the

force used was “reasonable” under the Fourth Amendment. Graham, 109 S.Ct. at

1871-82. “In determining the reasonableness of the force applied, we look at the

fact pattern from the perspective of a reasonable officer on the scene with

knowledge of the attendant circumstances and facts, and balance the risk of bodily

harm to the suspect against the gravity of the threat the officer sought to

eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). We




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may also consider, as a factor, “not only the number of lives at risk, but also their

relative culpability.” Scott, 127 S.Ct. at 1778.

         “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.” Graham, 109 S.Ct. at 1872. And we must allow “for the fact that

police officers are often forced 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. “We are loath to second-guess the

decisions made by police officers in the field.” Vaughan v. Cox, 343 F.3d 1323,

1331 (11th Cir. 2003).

         The evidence, viewed in the light most favorable to Plaintiff, shows that

Officer Savitt violated no constitutional right when he shot Quiles: the officer’s act

was objectively reasonable. Quiles resisted physically, actively and aggressively

the officers’ efforts to arrest him by twice attempting to run away and by fighting

with Officer Cain. When Quiles pulled away from Officer Cain’s grasp and began

to run away for a second time, Officer Savitt believed reasonably (although

mistakenly) that Quiles had stolen and was still in possession of Officer Cain’s

gun. 4



4
 Plaintiff does not challenge the district court’s determination that Officer Savitt believed
reasonably that Quiles had, in fact, taken Officer Cain’s gun during the struggle.


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      An objective officer in Officer Savitt’s situation could have believed

reasonably that Quiles -- armed with a gun -- posed a threat of serious physical

injury to the officers and to others. Quiles had shown himself willing to use

physical force against an officer to avoid arrest. And nothing indicated that Quiles

-- who had started to run away with what the officers believed reasonably to be a

police-issue firearm taken by force from an officer -- had stopped resisting the

officers’ efforts to seize him or would otherwise refrain from using force to avoid

arrest again. Faced with a “tense, uncertain, and rapidly evolving” situation,

Officer Savitt made a split-second decision to shoot Quiles to avoid the risk of

serious injury to either of the officers or to bystanders. Given the circumstances,

we cannot say that Officer Savitt’s decision was unreasonable in the Fourth

Amendment sense. Furthermore, we feel certain that it was not clearly established

-- as a matter of law -- at the time of the shooting that Officer Savitt acted

unreasonably in the Fourth Amendment sense.

      Although Quiles was running away from the officers when he was shot and

had not threatened definitely the officers with a gun, “the 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.” See Long v. Slaton, 508 F.3d 576, 581

(11th Cir. 2007); see also Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997)

(even though suspect was running away and never pointed shotgun at anyone, the



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officer was entitled to qualified immunity because the officer could have believed

reasonably that the suspect “might wheel around and fire his shotgun again, or

might take cover . . . and shoot at the officers or others.”). Officers need not “wait

and hope for the best.” Jean-Baptiste, 627 F.3d at 821 (quotation omitted).

      That Officer Savitt was mistaken -- reasonably mistaken -- about Quiles

having stolen Officer Cain’s gun does not matter either on the merits or for

purposes of immunity. See Penley v. Weippert, 605 F.3d 843, 851, 854 (11th Cir.

2010) (concluding that no Fourth Amendment violation occurred when officer

believed reasonably that the suspect -- who was armed with a realistic-looking toy

gun -- posed a threat of serious physical harm to the officers and to nearby

students); Garczynksi v. Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009)

(concluding officer was entitled to qualified immunity when decision to shoot

suspect was based in part on a mistaken, but reasonable, belief that the suspect was

about to drive away).

      In denying Officer Savitt’s motion for summary judgment, the district court

-- citing Tennessee v. Garner, 105 S.Ct. 1694 (1985), and this Court’s decision in

Acoff v. Abston, 762 F.2d 1543 (11th Cir. 1985) -- relied solely on its

determination that the officers issued no warning to Quiles about the potential use

of deadly force against him. Although a warning is one factor that weighs in favor

of reasonableness, see Garner, 105 S.Ct. at 1701, the Supreme Court has stressed



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that “Garner did not establish a magical on/off switch that triggers rigid

preconditions whenever an officer’s actions constitute ‘deadly force.’” See Scott,

127 S.Ct. at 1777. Instead, reasonableness is determined based on all the facts and

circumstances of each individual case. Graham, 109 S.Ct. at 1872.

      Given the teaching of the post-1985 development of the law (all that matters

is reasonableness), the district court’s focus on our opinion in Acoff is misplaced.

In Acoff -- decided only a few months after Garner was decided -- we treated

Garner as having established a “standard for defining the reasonable use of deadly

force to seize a person.” See Acoff, 762 F.2d at 1547. We described the Garner

standard as containing three distinct elements, one of which was the issuance of a

warning when feasible. See id. In explaining why a directed verdict for defendant

was improper in that case, we relied on a number of things, including our

reasoning that “[t]he jury was certainly entitled to conclude that a warning was

feasible and this alone would have established a violation of the legal standard.”

See id. at 1548. But, in the light of the Supreme Court’s later clarification in Scott

of the Garner legal standard, we now know and had published precedents by 2011

that an officer’s failure to issue a seemingly feasible warning -- at least, to a person

appearing to be armed -- does not, in and of itself, render automatically

unreasonable the use of deadly force. See Penley, 605 F.3d at 854 n.6 (quotations

and alterations omitted) (rejecting the argument that Garner mandates the issuance



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of a warning, and explaining that this Court has “declined to fashion an inflexible

rule that, in order to avoid civil liability, an officer must always warn his suspect

before firing -- particularly where such a warning might easily have cost the officer

his life.”); Carr v. Tatangelo, 338 F.3d 1259, 1269 n. 19 (11th Cir. 2003) (same,

adopting the Fourth Circuit’s reasoning in McLenagan v. Karnes, 27 F.3d 1002

(4th Cir. 1994)).

      Given the facts and circumstances of this case, Officer Savitt’s use of deadly

force was not outside the range of reasonable conduct under the Fourth

Amendment. He faced what was reasonably perceived as a grave danger. An

objectively reasonable officer possessing the same knowledge as Officer Savitt

could have believed that the use of deadly force against Quiles was justified, to

prevent serious injury to the officers and to bystanders. The Constitution was not

violated. Moreover, given the circumstances and the train of precedents, we are

even more confident that Officer Savitt, in 2011, violated no clearly-established

constitutional right of which a reasonable person would have known; as a matter of

law, he personally is entitled to immunity.

      REVERSED AND REMANDED.




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