                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-11081
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:14-cv-00145-MW-GRJ



RANDALL R. PREVATT,

                                            Plaintiff - Appellant,

versus

CITY OF GAINESVILLE, FLORIDA,
A municipal corporation,
JEREMIAH KELLY,
In individual capacity,
DANIEL ABBOTT,
In individual capacity,

                                            Defendants - Appellees.

                     ________________________

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

                           (August 8, 2016)
Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Plaintiff Randall Prevatt appeals the district court’s order granting summary

judgment in favor of Defendants Corporal Jeremiah Kelly and Officer Daniel

Abbott (“Defendant Officers”) in Plaintiff’s 42 U.S.C. § 1983 civil action.1

Plaintiff contends that Defendant Officers used excessive force in violation of the

Fourth Amendment. No reversible error has been shown; we affirm.

       This appeal arises out of an incident that occurred on 2 January 2013.

Viewed in the light most favorable to Plaintiff, these facts are pertinent.2 On the

day of the incident, Plaintiff was moving (on foot) his personal belongings from a

room he had been renting to a nearby temporary campsite. Earlier that morning,

Plaintiff had consumed 12 beers. He says that he might have been “drunk” when

he encountered Defendant Officers. Shortly after 2pm, Plaintiff walked down a

public sidewalk along a busy street, close to an elementary school. Plaintiff was



1
 Plaintiff has abandoned expressly his section 1983 claim for excessive force against the City of
Gainesville. Plaintiff also raises no challenge to the district court’s refusal to exercise
supplemental jurisdiction over Plaintiff’s state law claims for battery and for negligent
supervision.
2
 Contrary to Plaintiff’s argument on appeal, the record demonstrates that the district court
construed properly all genuinely disputed material facts in the light most favorable to Plaintiff.
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carrying a 30-inch air rifle pistol (designed for shooting BBs) in his left hand and

two 8-inch kitchen knives in his right hand.

          Meanwhile, Defendant Officers received notice of at least two 911 calls

reporting that a man was walking near an elementary school with what appeared to

be an assault rifle.3 Shortly after receiving the 911 calls, Defendant Officers found

Plaintiff and saw that Plaintiff was carrying what looked like a rifle in his left

hand.

          The encounter between Defendant Officers and Plaintiff was captured by a

security camera. 4 Defendant Officers pulled up behind Plaintiff and came out of

their patrol car with their guns drawn. Defendant Officers ordered Plaintiff to drop

his gun. Plaintiff turned to face Defendant Officers and immediately tossed his

gun on the ground. Defendant Officers then saw the knives in Plaintiff’s right

hand and ordered Plaintiff to drop the knives; Plaintiff complied.

          Defendant Officers then ordered Plaintiff to put his hands in the air and to

get on the ground. Instead of complying immediately, however, Plaintiff turned

around and took three to four steps away from Defendant Officers. In response,

Defendant Officers began running toward Plaintiff. Plaintiff then stopped and


3
 The district court took judicial notice that this incident took place less than three weeks after the
mass shootings at Sandy Hook Elementary School in Newtown, Connecticut. The district court
also noted that on the date of this incident the local elementary school was closed for winter
break, although no officer involved in this stop knew the school was closed.
4
    We note, however, that the surveillance video contains no audio component.
                                                  3
raised his hands above his head. Almost simultaneously, Defendant Officers --

who were already approaching Plaintiff at full speed -- made contact with Plaintiff,

shoving Plaintiff in the back, causing Plaintiff to fall face-first onto the sidewalk.

Plaintiff suffered serious injuries as a result. The entire encounter (from the time

Defendant Officers exited their patrol car to the time Plaintiff was knocked to the

ground) lasted about 11 seconds.

      Plaintiff filed this civil action against Defendant Officers individually,

alleging that Defendant Officers used excessive force (in violation of the Fourth

Amendment) when they shoved Plaintiff to the ground. The district court granted

Defendant Officers’ motion for summary judgment: a motion based on an assertion

of qualified immunity.

      We review de novo a district court’s grant of summary judgment, viewing

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

nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

When a video recording exists of the pertinent events -- as in this case -- we

“view[] the facts in the light depicted by the videotape.” Scott v. Harris, 127 S. Ct.

1769, 1776 (2007).

      “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


                                           4
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 Defendant Officers violated a federal right and that the right was already

clearly established when Defendant Officers acted. See id. The doctrine of

qualified immunity, when applied properly, “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 and alterations omitted). “We

do not require a case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015).

      “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). The right is highly contextualized: the right must be judged in the light

of the particular situation. An officer’s use of force is unconstitutionally excessive

only if the force used was “objectively [un]reasonable in light of the facts and




                                           5
circumstances confronting” the officer. Graham v. Connor, 109 S. Ct. 1865, 1872

(1989) (quotations omitted).

      “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. Antonlini, 559 F.3d 1201, 1206 (11th Cir. 2009). We consider,

among other things, “the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham, 109 S.

Ct. at 1872. Given the right is fact sensitive, predicting whether the right has been

violated in any particular case is often difficult because all and so many different

facts must be weighed in the balance.

      We stress that “[t]he ‘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.” Id. 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




                                           6
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

Defendant Officers acted objectively reasonably when they pushed Plaintiff to the

ground. Defendant Officers -- responding to at least two 911 calls from concerned

citizens -- had just encountered Plaintiff walking along a busy street in a populated

area, within 30 feet of an elementary school, and armed with two knives and what

Defendant Officers believed reasonably to be an assault rifle.5 Given these

circumstances -- even in the absence of evidence that Plaintiff had made express

threats of violence -- an objective officer could have suspected reasonably that

Plaintiff had committed (or was about to commit) a serious crime.

       Although Plaintiff complied with Defendant Officers’ orders to drop his

weapons, Plaintiff failed to obey immediately the officers’ commands to put his

hands in the air and to get on the ground. Instead, Plaintiff turned around and

began walking away from Defendant Officers. Given Plaintiff’s seemingly

noncompliant behavior -- and given the possibility that Plaintiff still possessed

additional weapons -- an objective officer in Defendant Officers’ position could

have believed reasonably that Plaintiff still posed a threat of serious injury to the
5
 That Plaintiff’s gun in fact turned out to be a BB gun is not important. The reasonableness of
force used is not judged “with 20/20 vision of hindsight.” See Graham, 109 S. Ct. at 1872.
Because Plaintiff’s gun appeared to be made of black metal and contained no obvious markings
distinguishing it from an actual firearm, it was reasonable for Defendant Officers to believe the
gun was real and to respond accordingly.
                                                7
officers and to bystanders and that Plaintiff was attempting to evade arrest. Faced

with a “tense, uncertain, and rapidly evolving” situation, Defendant Officers made

a split-second decision to force Plaintiff to the ground in an attempt to gain control

of the situation and to avoid the risk of serious injury. Under these circumstances,

we cannot say that Defendant Officers’ decision to use non-lethal force was

unreasonable in the Fourth Amendment sense.

       In support of his claim of excessive force, Plaintiff relies on several

decisions, all of which involve the use of force against a suspect who had either

already submitted to police authority or who was already handcuffed. 6 In this case,

however -- at the moment Defendant Officers decided to use force against Plaintiff

-- Plaintiff was not handcuffed and had not submitted clearly to Defendant

Officers’ authority. That Plaintiff raised his hands in the air less than one second

before Defendant Officers struck Plaintiff, does not render Defendant Officers’

initial decision to use force constitutionally unreasonable under these

circumstances.




6
  See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (single punch to stomach of
non-resisting, handcuffed suspect constituted excessive force); Lee v. Ferraro, 284 F.3d 1188,
1198 (11th Cir. 2002) (involving use of force against plaintiff after plaintiff was arrested and
handcuffed); Slicker v. Johnson, 215 F.3d 1225, 1233 (11th Cir. 2000) (involving use of force
against non-resisting, handcuffed suspect); Priester v. City of Riviera Beach, 208 F.3d 919, 927-
28 (11th Cir. 2000) (affirming denial of qualified immunity where officers ordered police dog to
attack plaintiff after plaintiff submitted to arrest); Smith v. Mattox, 127 F.3d 1416 (11th Cir.
1997) (involving use of force while handcuffing suspect who had “docilely submitted to arrest”).
                                                8
       Plaintiff contends that he intended to comply with Defendant Officers’

orders to get on the ground, but was delayed in doing so by his arthritic leg.

Accepting Plaintiff’s version of the facts as true -- and considering that Plaintiff

said nothing to Defendant Officers either about his willingness to comply or about

his physical impairment and that Plaintiff was not visibly limping -- it was

reasonable for Defendant Officers to perceive Plaintiff’s delay as a sign of

intentional noncompliance. 7

       Plaintiff has failed to establish that Defendant Officers’ use of force

constituted a violation of his Fourth Amendment rights. Moreover, it was not

already clearly established -- such that the question was “beyond debate” -- at the

time Defendant Officers acted in 2013 that the amount of force used to subdue

Plaintiff under the circumstances of this case was constitutionally excessive.

Defendant Officers are entitled to qualified immunity.

       AFFIRMED.




7
 We also reject Plaintiff’s assertion that he was given inadequate time to comply with Defendant
Officers’ commands before being subjected to force. The officers’ decision to use force was
made not because Plaintiff failed to comply timely but because Plaintiff appeared to take
affirmative steps (turning and walking away) to avoid compliance with Defendant Officers’
orders.
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