           Case: 17-14048   Date Filed: 03/25/2019   Page: 1 of 16



                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-14048
                       ________________________

                D.C. Docket No. 6:15-cv-00677-CEM-GJK


RANDALL GREER,

                                                          Plaintiff-Appellant,

                                  versus

WAYNE IVEY,
TOWN OF INDIALANTIC,
JAMES HAMAN,
DIOMEDIS CANELA,

                                                        Defendants-Appellees.
                        ______________________

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

                             (March 25, 2019)

Before JORDAN, GRANT, and HULL, Circuit Judges.

PER CURIAM:
              Case: 17-14048     Date Filed: 03/25/2019    Page: 2 of 16


      On January 13, 2013, Christopher Greer was shot and killed in his home by

sheriff’s deputies James Haman and Diomedis Canela. Christopher’s brother,

Randall Greer, sued the Town of Indialantic, Sheriff Wayne Ivey, and the two

deputies, alleging violation of Christopher’s Fourth Amendment rights under 42

U.S.C. § 1983 and violations of Florida state law. The district court granted

summary judgment on all claims in favor of the defendants, and Randall appealed.

After thorough review, and with the benefit of oral argument, we conclude that a

genuine dispute of material fact should have precluded the grant of summary

judgment on Randall’s claims relating to the deputies’ use of force. We therefore

affirm in part, reverse in part, and remand the case to the district court.

                                           I.

      Indialantic is a small town, and the Greer residence was well-known to local

law enforcement. Christopher, who was forty-nine years old, had shared the home

with his ailing parents for years. The Indialantic police frequently fielded 911 calls

from Christopher and his mother reporting hallucinated home invasions.

Christopher’s parents had died within the last few months, however, and he had

been living alone ever since.

      Randall Greer, Christopher’s brother and a city councilman, worried that

Christopher was becoming increasingly paranoid and unstable. A month before

the shooting, Randall sought to have Christopher involuntarily committed under

                                           2
              Case: 17-14048    Date Filed: 03/25/2019    Page: 3 of 16


Florida’s Baker Act, but Police Chief Troy Morris said that he could not “Baker

Act” Christopher unless he posed a threat. Chief Morris said that if Christopher

ever behaved violently, Randall should call the police.

      On the day of the shooting, Randall spent all day cleaning Christopher’s

garage while Christopher sat inside, smoking cigarettes and watching TV. As he

was getting ready to leave with his wife, Randall criticized Christopher for being

unhelpful. Christopher reacted poorly to the accusations, and Randall threatened to

call the police. In response, Christopher pulled out a knife and hobbled toward

Randall, waving the knife in the air. Randall easily disarmed his brother, who

suffered from chronic foot and back problems and had no use of his left arm. Still,

after Randall confiscated the knife, Christopher exclaimed, “I don’t need that” and

grabbed Randall’s wife by the throat. She calmed him down, and he retreated into

the house after apologizing. At that point, as Chief Morris had advised him to do,

Randall reported the incident to the police.

      Officer Scott Holstine of the Indialantic police force was first on the scene.

He told Randall and his wife that his primary concern was to Baker Act

Christopher, and that he would “worry about criminal charges later.” Holstine then

approached Christopher, who was standing in the front doorway: “Hey Chris, I

need you to come out here and talk to me.” Christopher replied sharply, yelling,

“Don’t even think about it, don’t try it!” and slammed the door. After that

                                          3
              Case: 17-14048    Date Filed: 03/25/2019    Page: 4 of 16


outburst, Holstine instructed Randall and his wife to leave the scene and called the

Brevard County Sheriff’s Department for backup.

      Two Brevard Sheriff’s deputies, Haman and Canela, responded to the call

for backup. Haman arrived first, and Holstine briefed him on the situation,

including a warning that Christopher might have weapons—knives, a disassembled

cross-bow, and firearms. Haman took charge from that point on. He used the PA

system in Holstine’s vehicle to ask Christopher to come out of the house, but

Christopher refused. At Haman’s instruction, Canela arrived on the scene shortly

thereafter with a ballistic shield. After another failed attempt to coax Christopher

out through the front door, Haman and Canela noticed that the garage was open

and decided to approach the house that way.

      Both deputies had their guns drawn as they neared the house. Holstine, also

armed, stayed about ten feet back to provide cover. Once they reached the house,

the deputies opened the interior door, but Christopher appeared and slammed it

shut. At that time, the deputies observed that Christopher had a sheathed knife on

his belt. Haman began to kick the door, which was somehow obstructed, but it

eventually swung open. Canela testified that he moved closer to the door, where

he saw Christopher standing back a few feet. Canela yelled “knife!” almost

immediately, and he and Haman opened fire—again, almost immediately (and only

eleven minutes after Haman arrived on the scene). Haman and Canela said that

                                          4
              Case: 17-14048     Date Filed: 03/25/2019   Page: 5 of 16


Christopher was moving toward them with a knife raised above his head, as though

he intended to stab them. Holstine’s testimony, on the other hand, indicated that he

did not see Christopher wielding a knife in that way. Regardless, the deputies fired

thirteen rounds as the door swung closed. According to a ballistics expert, eleven

of those thirteen rounds passed through the door. When they entered the house, the

deputies found Christopher lying on the floor; he had been struck by eight of the

thirteen rounds and died of his wounds at the scene. The deputies found a sheathed

Ka-Bar knife attached to Christopher’s belt on his right side, as well as a large

fixed-blade knife—bent, broken and covered in blood—in the folds of a coat near

Christopher’s left leg. They also noticed a marking on the door that appeared to be

a knife gouge.

      Following Christopher’s death, Randall sued a host of defendants, both in

his individual capacity and as a representative of Christopher’s estate. At summary

judgment, the counts that remained were the § 1983 excessive force claims against

Haman and Canela (Counts III and IV), the wrongful death claims against Haman

and Canela (Counts IX, X, XXII and XXIII), a negligent infliction of emotional

distress claim against Haman and Canela (Count XIV), an intentional infliction of

emotional distress claim against Haman and Canela (Count XX), a vicarious

liability claim against the Brevard County Sheriff Wayne Ivey (Count VII), and a

vicarious liability claim against the Town of Indialantic (Count VIII). The district

                                          5
              Case: 17-14048     Date Filed: 03/25/2019    Page: 6 of 16


court, without explicitly saying so, accepted the deputies’ account of the facts as

credible and concluded that they acted reasonably and in good faith under the

circumstances. That conclusion was dispositive of most of Randall’s claims. The

district court granted summary judgment in favor of the defendants on all counts.

                                          II.

      We review an order granting summary judgment de novo, viewing the

record in the light most favorable to the non-moving party. Blue v. Lopez, 901

F.3d 1352, 1357 (11th Cir. 2018). Summary judgment is appropriate only when

“no genuine dispute of material fact exists, and the movant is entitled to judgment

as a matter of law.” Id. at 1360. If the existence of a material fact turns on

credibility determinations, then summary judgment is improper, and the case

should proceed to trial. Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006).

      The principal question in this case is whether, viewing the facts in the light

most favorable to Randall Greer, it was reasonable for Haman and Canela to use

deadly force on Christopher. Once we have “determined the relevant set of facts

and drawn all inferences in favor of the nonmoving party to the extent supportable

by the record, the reasonableness of [the deputies’] actions . . . is a pure question of

law.” Scott v. Harris, 550 U.S. 372, 381 n.8 (2007) (citation omitted); Wate v.

Kubler, 839 F.3d 1012, 1019 (11th Cir. 2016).




                                           6
              Case: 17-14048    Date Filed: 03/25/2019    Page: 7 of 16


      The answer to that question—under both federal law and Florida law—turns

on whether, in the moment before the shooting, the deputies reasonably believed

that Christopher posed an immediate threat to their safety. See Perez v.

Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016) (holding that “deadly force is

not justified ‘[w]here the suspect poses no immediate threat to the officer and no

threat to others’” (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985))); Singletary

v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (“As to deadly force, a police

officer 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.”);

City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. Dist. Ct. App. 1996). The parties

disagree over what transpired in that pivotal moment.

      As we have previously cautioned, “the mere presence of a . . . weapon is not

enough to warrant the exercise of deadly force and shield an officer from suit.

Where the weapon was, what type of weapon it was, and what was happening with

the weapon are all inquiries crucial to the reasonableness determination.” Perez,

809 F.3d at 1220. Here, the reasonableness determination turns on two questions:

Was Christopher holding a knife when he was killed? And, if so, what was he

doing with it?

      The evidence is mixed. First, the perspective of the deputies. Haman and

Canela argue vigorously that they shot Christopher in self-defense. According to

                                          7
              Case: 17-14048    Date Filed: 03/25/2019    Page: 8 of 16


their testimony, they were just two or three feet away from a “knife wielding man

who had recently threatened two family members and was advancing on their

position.” The deputies claim that they saw Christopher wielding a “huge” knife—

perhaps a “kitchen knife”—when they kicked open the door. They maintain that

Christopher approached them “aggressively” with the knife raised “above his

head,” making “a downward stabbing motion.” In Canela’s words, “he was

actually coming towards the door, towards us,” as if “he was gonna stab.” Canela

described Christopher as “charging towards” them, and Haman said, “he came

right at me.” The officers said they feared for their lives. Judging purely from

their own accounts, the deputies’ actions were reasonable.

      The case is not quite that clear, however. Officer Holstine was standing

about ten feet behind Haman and Canela when the two deputies opened fire, and

his statements to police investigators differed from the deputies’ account in one

critical respect. Holstine testified that he “could only see Chris from chest up”

over Haman’s shoulder. From that vantage point, Holstine presumably would have

seen a knife raised above Christopher’s head. But when asked, “Did you see

Chris’s hands at all?” Holstine replied, “I couldn’t, ’cause my view was blocked

by Jim Haman.” When specifically asked if he saw a knife, Holstine said, “I did

not.” According to Randall, Holstine’s testimony suggests that Christopher’s




                                          8
              Case: 17-14048    Date Filed: 03/25/2019    Page: 9 of 16


hands must have been below his chest—perhaps down by his sides—when the

deputies started shooting.

      The physical evidence in the record does not decisively vindicate either

side’s account. First, the fact that Christopher’s body was not found with a knife

in or near his hand makes it harder to conclude that he was necessarily holding a

knife when he was killed. Of the two knives recovered from the scene, one was

found still in its sheath. That leaves the second, the bloody and broken fixed-blade

knife, as the one that the deputies could have seen in Christopher’s hand. Recall

that after the shooting the deputies described the knife they saw in Christopher’s

hand as a kitchen knife. But one deputy later conceded under oath that the broken

knife did not look like a kitchen knife, and neither of them could positively identify

the broken knife as the weapon they saw. What’s more, the broken knife was

found in the folds of a coat lying by Christopher’s left side—perhaps surprising,

given that Christopher only had use of his right hand. That said, a police special

agent investigating the incident noted that the coat could have been pushed to that

spot when the deputies opened the door after the shooting. And the aftermath of

the shooting was hectic, with a bomb squad and fire department medics on the

scene; one deputy said that he couldn’t be sure that evidence was not moved in the

commotion.




                                          9
              Case: 17-14048      Date Filed: 03/25/2019     Page: 10 of 16


       Physical evidence also at least calls into question the contention that

Christopher was charging toward the deputies when they opened fire. Photographs

show that the door opened into the house rather than out into the garage.

Moreover, bullet holes indicate that the door was closing when the deputies shot

Christopher, and a defense expert also testified to that conclusion. Indeed,

although Canela said that Christopher was “in front of the door with the knife”

when the deputies opened fire, Christopher’s body was found behind the closed

door after the shooting—not in front of it—with most of the bullets having gone

through the door. On the other hand, the defense expert also noted that “the inside

garage door displays an apparent stab mark” consistent with movement “from

inside the door . . . toward the garage.” And in his deposition, Randall admitted

that he had not noticed any such stab mark on the door earlier in the day—which

leaves open the possibility that Christopher was stabbing toward the door during

the confrontation with the deputies.

       Having reviewed the record, we cannot say that the deputies’ conclusion is

indisputable—and we certainly cannot say so under the view of the facts most

favorable to Randall. The physical evidence and the witnesses’ testimony could

support the officers’ claims that Christopher was poised to attack them. It could

also support Randall’s claims that the officers did not reasonably fear for their

safety. But it is not our place to resolve that dispute of fact; it is the jury’s.

                                            10
             Case: 17-14048     Date Filed: 03/25/2019    Page: 11 of 16


“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The district court thus

erred by making a legal judgment before a jury had a chance to piece together what

really happened.

      Our decision in Garczynski v. Bradshaw, 573 F.3d 1158 (11th Cir. 2009),

does not demand a different result. As an initial matter, we emphasized that an

excessive force inquiry will turn on the “particular facts of each case.” Id. at 1166.

It is true that we upheld summary judgment in that qualified-immunity case,

despite the fact that there, as here, one officer did not see the weapon and the

weapon was found in a non-obvious spot. That, however, is really where the

similarities end. In Garczynski, police officers surrounded the car of an armed

suicidal man and ultimately shot him dead. While the parties disagreed about

whether Garczynski aimed his gun at the officers, there was no dispute that he had

refused to comply with their repeated demands to drop the weapon. Id. at 1169.

And the only officer to testify that he could not see the firearm viewed the scene

from forty feet away and through a fogged car window. Id. at 1168. Here, by

contrast, Holstine stood only ten feet away from Christopher. More broadly, we

took care to note in Garczynski that less is required for an officer to reasonably

perceive an immediate threat when the suspect is armed “with a gun, rather than a

                                          11
             Case: 17-14048     Date Filed: 03/25/2019   Page: 12 of 16


knife.” Id. at 1169 n.3; see also Perez, 809 F.3d at 1220 (observing that “a person

standing six feet away from an officer with a knife may present a different threat

than a person six feet away with a gun”).

       Between the physical evidence and Holstine’s conflicting testimony, then,

significant issues of material fact exist regarding whether Christopher was in fact

raising a knife and charging at the deputies when they shot him. And as we have

previously said, the task of weighing the credibility of police testimony against

other evidence “is the stuff of which jury trials are made.” Feliciano v. City of

Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). Accordingly, those counts

that turn on the reasonableness of the deputies’ use of deadly force must proceed to

trial. These counts include the § 1983 claims, because the law was clearly

established at the time of Randall’s death that shooting a person who has done

nothing threatening and thus never posed an immediate danger violates the Fourth

Amendment right to be free from the use of excessive force. See Mercado v. City

of Orlando, 407 F.3d 1152, 1157-58 (11th Cir. 2005); Lundgren v. McDaniel, 814

F.2d 600, 603 (11th Cir. 1987). These counts also include state tort law claims

dismissed on statutory immunity grounds, because there is a genuine issue of fact

as to whether the deputies exhibited “wanton and willful disregard of human rights,

safety, or property.” See Fla. Stat. § 768.28(9)(a) (providing that officers who

exhibit “wanton and willful disregard of human rights, safety, or property” are not

                                         12
              Case: 17-14048       Date Filed: 03/25/2019      Page: 13 of 16


immune from tort liability); Thompson v. Douds, 852 So. 2d 299, 309 (Fla. Dist.

Ct. App. 2003) (holding that evidence of officers’ excessive force could indicate

wanton and willful disregard, precluding summary judgment on statutory

immunity grounds). We therefore reverse and remand on the § 1983 excessive

force claims against Haman and Canela (Counts III and IV), and the wrongful

death claims against Haman and Canela (Counts IX, X, XXII, and XXIII). 1

                                             III.

       As for the remaining issues on appeal, we find no error.

       Count VIII seeks to hold the Town of Indialantic vicariously liable for

Police Chief Morris’s and Officer Holstine’s alleged negligent communication

with other officers. We agree with the district court that the officers were engaged

in Category II law enforcement activity under Florida’s Trianon taxonomy, and

therefore did not owe Christopher a special duty of care. See Wallace v. Dean, 3

So. 3d 1035, 1047 (Fla. 2009). Nor did any “special relationship” between the

Indialantic police and Christopher give rise to a duty of care. Id. at 1048. Finally,

neither officer’s statements constituted the “express promise” of assistance



1
  While Randall failed to mention Deputy Haman by name in his briefing of the Florida state law
claims, he clearly states that the factual issues discussed above should preclude summary
judgment on Counts IX, XIV, XXII, and XXIII. We therefore cannot conclude that Randall has
“abandoned all state law claims against Sergeant Haman on appeal.” Furthermore, because we
remand Counts X, XXII and XXIII for trial, we need not reach Randall’s argument that the
district court abused its discretion by allowing Canela to file an untimely motion for summary
judgment on those counts.
                                              13
               Case: 17-14048       Date Filed: 03/25/2019      Page: 14 of 16


required to establish a heightened duty of care under Florida law. See Hartley v.

Floyd, 512 So. 2d 1022, 1024 (Fla. Dist. Ct. App. 1987). The grant of summary

judgment on Count VIII is affirmed.

       Count VII, which seeks to hold Sheriff Ivey vicariously liable for Haman

and Canela’s alleged negligence, is also meritless. The deputies’ use of force was

intentional, not negligent. See Sanders, 672 So. 2d at 48 (“[I]t is not possible to

have a cause of action for ‘negligent’ use of excessive force because there is no

such thing as the ‘negligent’ commission of an ‘intentional’ tort.”). Nor does the

evidence support Randall’s claim that the deputies were negligent in how they

approached the house prior to the shooting. The grant of summary judgment on

Count VII is affirmed.

       With respect to Count XX, which seeks to hold Haman and Canela liable for

intentional infliction of emotional distress, we conclude that the district court

properly stated the law and found that Randall had failed to produce any evidence

beyond bare allegations of his “severe” emotional distress. As for Count XIV,

Randall has likewise failed to prove that he has suffered a “physical injury” caused

by the “psychological trauma” of his brother’s death, and thus has not carried his

burden in proving the elements of negligent infliction of emotional distress.2 Zell



2
 We may affirm for any reason supported by the record, even one not relied on by the district
court. See United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).
                                               14
                Case: 17-14048     Date Filed: 03/25/2019    Page: 15 of 16


v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995). Accordingly, the grant of summary

judgment on Counts XIV and XX is affirmed.

         Randall also argues that while the Third Amended Complaint never stated a

§ 1983 claim for warrantless entry, such a claim was tried by “implied consent”

under Federal Rule of Civil Procedure 15(b)(2). This argument is a non-starter for

the simple reason that this case has not yet been tried. Rule 15(b) is titled

“Amendments During and After Trial.” Id. We have held that the Rule is thus

“inapposite where, as here, there was no trial because the district court decided the

case at the summary judgment stage.” Blue Cross & Blue Shield of Ala. v. Weitz,

913 F.2d 1544, 1550 (11th Cir. 1990). Warrantless entry could not have been tried

by implied consent, so the district court did not err in refusing to consider this

claim.

         Finally, Randall argues that the district court abused its discretion by striking

his expert witness’s untimely rebuttal report. But a party who fails to timely

disclose an expert report may not use that report at trial “unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c). Dr. Marraccini’s July

1, 2016 report was filed one month late, on the final day of discovery, and,

critically, after Dr. Marraccini had already been deposed. It is “harmful to deprive

opposing counsel of the expert’s report before his deposition” because opposing

counsel needs an opportunity to prepare an appropriate line of questioning. Walter

                                             15
              Case: 17-14048     Date Filed: 03/25/2019   Page: 16 of 16


Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1413 (11th Cir. 2011). We therefore

affirm the district court’s order striking Dr. Marraccini’s July Report and

prohibiting him from opining on matters outside the scope of his April Report.

                                           IV.

      To summarize, we reverse the district court’s grant of summary judgment on

Counts III, IV, IX, X, XXII, and XXIII; we affirm on Counts VII, VIII, XIV, and

XX, as well as on the challenged procedural rulings; and we remand for further

proceedings. We underscore that our opinion today passes no judgment on the

deputies’ credibility or the impact of the physical evidence, each of which must be

determined in the first instance by a trier of fact.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                           16
