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                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-15294
                          ________________________

                      D.C. Docket No. 4:17-cv-00018-HLM



LEVI WILSON,
DARIS WILSON,
as Surviving Children of Darren Billy Wilson, Deceased,
and as Personal Representatives of the Estate of Darren Billy Wilson,

                                                              Plaintiffs-Appellants,

                                      versus

DEPUTY ANTHONY PARKER,
in Both His Individual and Official Capacities,
DEPUTY NICK THOMPSON,
in his Official Capacity Only,

                                                            Defendants-Appellees.

                          ________________________

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

                                (August 17, 2018)
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Before ED CARNES, Chief Judge, and BRANCH and FAY, Circuit Judges.

PER CURIAM:

       This case stems from a tragic encounter between Darren Billy Wilson and

Bartow County Deputy Sheriffs Anthony Parker and Nick Thompson. The

deputies responded to a call about a disturbance in the woods behind a home in

Bartow County, Georgia. When they arrived they could hear strange noises in the

woods and headed in that direction using a procedure called “contact and cover.” 1

Thompson took the lead and had his taser drawn; Parker followed and had his

firearm drawn. They ultimately came upon Wilson who was sitting in the woods

in only his underwear screaming at someone or something that was not there.

Upon seeing the deputies, Wilson rose, grabbed a stick, and charged Thompson.

Parker, fearing Thompson was in danger, fired at Wilson resulting in his death.

       The plaintiffs are the surviving children of Wilson and have brought claims

against the deputies under 42 U.S.C. § 1983, the Americans with Disabilities Act

(“ADA”), the Rehabilitation Act, and state law. The district court granted

summary judgment on the § 1983 claim because Parker was entitled to qualified

immunity. The district court also determined the plaintiffs failed to make the

requisite showing with respect to their ADA and Rehabilitation Act claims, and the


       1
          Under this procedure, the “contact officer,” armed with a non-lethal method of force,
tries to make initial contact with the suspect. The “cover officer” uses a lethal method of force if
necessary to protect the contact officer from being assaulted.
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state law claims failed on the merits. On appeal, the plaintiffs assert our precedent

establishes Parker violated Wilson’s clearly established constitutional right to be

free from deadly force. They also contend the district court erred by concluding

Wilson was not a qualified individual with a disability. Finally, they argue Parker

was not entitled to official immunity on the state law claims.

      While Wilson’s death was undoubtedly tragic, we conclude Parker did not

violate his Fourth Amendment rights. Additionally, the plaintiffs fail to address

several of the district court’s grounds for granting summary judgment with respect

to their ADA, Rehabilitation Act, and state law claims. Accordingly, we affirm.

                                I. BACKGROUND

      A. Uncontested Facts

      On July 21, 2015, Parker and Thompson responded to a call stating that it

sounded like two men were fighting in the woods behind the caller’s house. Parker

and Thompson began searching the woods using the procedure called “contact and

cover,” described above.

      Thompson made initial contact with Wilson, a 47 year-old man with a

history of bipolar disorder, paranoid schizophrenia, and methamphetamine abuse.

Wilson, who was dressed in nothing but his underwear, was sitting on the ground

with his back to the deputies and screaming at someone or something that was not

there. Thompson commanded Wilson to show his hands. Instead, Wilson stood up


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and approached Thompson. Parker subsequently fired five shots, three of which

struck Wilson. One shot hit Wilson in his “mid back,” proceeding right to left and

“slightly back to front.” Another shot hit him in his right lower back, proceeding

right to left “with minimal front to back deviation.” A third bullet struck Wilson’s

right thigh. Wilson died as a result of the gunshots. He was “acutely intoxicated

by methamphetamine” at the time of his death. In total, about eleven seconds

passed between Thompson’s first command and Parker’s first shot.

      B. The Deputies’ Account

      Other than the facts described above, the parties dispute what occurred on

July 21, 2015. According to the deputies, when Thompson made contact with

Wilson, Wilson was sitting on the ground, holding a stick in his lap. Upon

standing, Wilson charged Thompson in “an aggressive state,” holding the stick

diagonally across his body in a “port arms” or “parade rest” position and yelling at

the top of his lungs. Thompson continued to instruct Wilson to show his hands.

Wilson never raised the stick or pointed it at Thompson but continued to charge.

Thompson backed away from Wilson as Wilson came toward him, but Wilson

moved faster than Thompson could back up. Thompson froze and did not use his

taser because he “didn’t have a shot.” He said Parker’s first name three times,

calling for assistance.




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       When Thompson first made contact with Wilson, Parker did not see them.

As Parker started to make his approach, he saw Wilson moving toward Thompson,

holding a stick or branch. Although Parker had pepper spray, he believed that it

was not a good option because he was not close enough, and it sprayed in a cone

and therefore would have affected Thompson as well. Parker responded to

Thompson’s call for help by firing at Wilson, though he would have shot even if

Thompson had not said his name. Wilson fell approximately eight to ten feet from

Thompson.

       The stick broke underneath Wilson as he fell. A Georgia Bureau of

Investigation (“GBI”) agent testified that the stick, which was approximately five

and one-half feet long, 2 was fragile and came apart as he picked it up. No tests

were done to determine whether there was any trace evidence indicating Wilson

had held the stick. The GBI agent explained that there was little to no chance of

getting a fingerprint from the surface of the stick and any “touch DNA” that would

have come from the stick would have been expected and would not be probative.

Moreover, the scene was not very bloody, and the GBI agent did not remember

seeing blood on the stick on the day of the shooting.

       C. Procedural History



       2
         The deputies admit on appeal that they gave incorrect estimates of the size of the stick
during their interviews with the GBI.
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      On August 31, 2017, the plaintiffs filed an amended complaint alleging

claims under § 1983 and state law against Parker and claims under the ADA and

the Rehabilitation Act against both Parker and Thompson. The district court

granted summary judgment on all claims. First, the court concluded the § 1983

claim was barred by qualified immunity. The court further determined the ADA

claim failed because the plaintiffs did not (1) present evidence that Wilson was a

qualified individual with a disability, (2) show that any modification of police

procedures would have been reasonable, or (3) establish that any purported

discrimination was by reason of Wilson’s disability. The court also concluded the

defendants were entitled to summary judgment with respect to the Rehabilitation

Act claim for these reasons and because there was no evidence that the Bartow

County Sheriff—the defendants’ employer—had received federal funds at the time

of the underlying incident. As to the state law claims, the court determined Parker

was not entitled to official immunity, but the claims failed on the merits. This

appeal followed.

                                 II. DISCUSSION

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

all the evidence, and drawing all reasonable factual inferences, in favor of the

nonmoving party.” Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.




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2017) (quoting Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th

Cir. 2014)).

      A. Excessive Force Claim

      Apprehension by deadly force constitutes a seizure. Morton v. Kirkwood,

707 F.3d 1276, 1281 (11th Cir. 2013). In determining whether an officer used

excessive force “we pay ‘careful attention to the facts and circumstances’ of the

case, ‘including the severity of the crime at issue . . . and whether [the suspect] is

actively resisting arrest or attempting to evade arrest by flight,’” id. (quoting

Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)), but the

decisive fact here is the threat of physical harm that Wilson posed to Thompson at

the time Parker shot him, cf. Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010)

(“In this case, the reasonableness analysis turns on the second of these factors: the

presence of an imminent threat.”). If a reasonable officer could have believed

under the circumstances that Wilson “posed a threat of inflicting serious injury or

death” to Thompson, then “the shooting was objectively reasonable regardless of

whether [Wilson] had already committed a crime or was resisting or attempting to

evade arrest.” Shaw v. City of Selma, 884 F.3d 1093, 1099 n.5 (11th Cir. 2018).

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

‘reasonableness,’” to answer that question. Scott v. Harris, 550 U.S. 372, 383, 127

S. Ct. 1769, 1778 (2007).


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       As an initial matter, Wilson’s appearance and conduct made it apparent that

something was wrong and that his behavior might be unpredictable and dangerous.

It certainly would be strange to find an adult man in possession of all his faculties

sitting alone in the woods in his underwear, screaming at nothing. This would

have warned Parker and Thompson that Wilson was mentally ill, heavily

intoxicated, or both.3 Law enforcement officers approaching suspects in such

circumstances should use special caution, both to protect themselves and the

suspect.

       While we sympathize with the plaintiffs for their loss, we conclude Parker

did not violate Wilson’s Fourth Amendment rights. First, Parker had probable

cause to believe Wilson posed a threat of serious physical harm to Thompson.

According to the deputies’ testimony, Wilson charged at Thompson while holding

a stick that was five and one-half feet long. 4 Although Wilson did not point the


       3
           Thompson testified that he believed Wilson was intoxicated.
       4
          The plaintiffs argue that a reasonable jury might discredit the deputies’ testimony that
Wilson had a stick. As support for this claim, they point to portions of an audio recording,
inconsistencies in the deputies’ accounts, and the fact that the state did not conduct tests for trace
evidence on the stick. They further contend there is a credibility issue as to whether Wilson
charged at Thompson. But “discredited testimony is not normally considered a sufficient basis
for drawing a contrary conclusion.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106
S. Ct. 2505, 2514 (1986) (alteration omitted) (quoting Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 512, 104 S. Ct. 1949, 1966 (1984)). Additionally, none of the
evidence to which the plaintiffs point constitutes affirmative evidence in support of their theory.
See id. (“[T]he plaintiff must present affirmative evidence in order to defeat a properly supported
motion for summary judgment.”). Even setting aside the deputies’ testimony, “the mere fact that
the record, when viewed in the light most favorable to [the plaintiffs], is theoretically not
inconsistent with [the plaintiffs’ theory of events], is not enough to survive summary judgment.”
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stick at Thompson or raise it to swing it, “[t]he 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.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821

(11th Cir. 2010) (alteration omitted) (quoting Long v. Slaton, 508 F.3d 576, 581

(11th Cir. 2007)). Moreover, Wilson had not yet closed the distance between

himself and Thompson, and he could have swung the stick at Thompson once he

was within range. See Shaw, 884 F.3d at 1100 (holding that an officer did not use

excessive force in shooting a suspect that was carrying a hatchet and approaching

the officer because, even though the hatchet was not raised at the time of the

shooting, the suspect “could have raised [it] in another second or two and struck

[the officer] with it”).

       Wilson also had refused to comply with repeated commands to show his

hands, which tips in favor of finding Parker’s behavior objectively reasonable. Cf.

Penley, 605 F.3d at 851 (“[The plaintiffs] do not contest that [the decedent] refused

to comply with repeated commands to drop his weapon [a toy gun]. Non-

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

reasonable.”); Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009)

(“[T]he escalation into deadly force was justified by [the decedent’s] refusal to




Hammett v. Paulding Cty., 875 F.3d 1036, 1050 (11th Cir. 2017). The plaintiffs’ theory is “pure
speculation.” Id.
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comply with the officers’ commands.”). The fact that Wilson had been acting

erratically also weighs in Parker’s favor, as a person acting unpredictably could

present an increased threat to others. Finally, although Parker gave no warning

that he would use deadly force, it was not feasible to do so under the circumstances

because the situation unfolded rapidly; only about eleven seconds passed between

Thompson’s first order for Wilson to show his hands and Parker’s first shot.

Additionally, Wilson was advancing toward Thompson faster than Thompson

could back up, so pausing to warn Wilson would have increased the risk that

Thompson would be seriously harmed.

      Parker was faced with a difficult choice. He could either shoot an

apparently intoxicated or mentally ill man, or he could stand aside and risk a fellow

officer being seriously harmed or killed. Even if the situation could have been

handled better—a proposition that is by no means certain—“we are mindful that

officers make split-second decisions in tough and tense situations,” and “[w]e are

‘loath to second-guess decisions made by police officers in the field.’” Hammett v.

Paulding Cty., 875 F.3d 1036, 1050-51 (11th Cir. 2017) (first quoting Morton, 707

F.3d at 1281; then quoting Penley, 605 F.3d at 854). Viewing the facts from the

perspective of a reasonable officer on the scene, we conclude Parker did not violate

Wilson’s Fourth Amendment rights. Accordingly, Parker was entitled to summary

judgment with respect to the excessive force claim.


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       B. ADA and Rehabilitation Act Claims

       As to the ADA claim, the district court stated several reasons the defendants

were entitled to summary judgment: (1) the plaintiffs had not shown Wilson was a

qualified individual with a disability; (2) the plaintiffs had not established that it

was reasonable for the deputies to modify police procedures; and (3) the plaintiffs

had not shown that any alleged discrimination was by reason of Wilson’s

disability. The district court relied on all these grounds and an additional reason in

granting summary judgment as to the Rehabilitation Act claim.

       The only argument the plaintiffs advance on appeal with respect to their

ADA and Rehabilitation Act claims is that the district court erred by holding an

intoxicated, disabled person is not a qualified individual with a disability simply

due to his intoxication.5 Because they have not asserted any specific arguments

with respect to the district court’s alternative grounds for granting summary

judgment on the ADA and Rehabilitation Act claims, the court’s order as to these

claims is due to be affirmed. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 680 (11th Cir. 2014) (“When an appellant fails to challenge properly on

appeal one of the grounds on which the district court based its judgment, he is


       5
          In their reply brief, the plaintiffs further assert that reasonable jurors could find an
intentional failure to reasonably accommodate Wilson’s disability. But they failed to make this
argument in their initial brief, and a reply brief is not the place to raise arguments for the first
time. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th Cir. 2014). In any
event, this argument does not specifically address the district court’s reasons for granting
summary judgment.
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deemed to have abandoned any challenge of that ground, and it follows that the

judgment is due to be affirmed.”).

      C. State Law Claims

      Finally, the plaintiffs urge us to reverse the district court’s grant of summary

judgment on their state law claims for excessive force, abuse of a person being

arrested, battery, and negligence. Their sole argument on appeal is that Parker is

not entitled to official immunity. But the district court did not determine that

official immunity applied; indeed, it concluded the opposite—that Parker was not

entitled to official immunity. Although the district court granted summary

judgment in Parker’s favor, it did so on the basis that the state law claims lacked

merit. The plaintiffs have not advanced any arguments as to why their state law

claims are meritorious. Therefore, they have abandoned any claim that the district

court erred in concluding otherwise. See id.

                                III. CONCLUSION

      In sum, we conclude Parker did not violate Wilson’s Fourth Amendment

rights, and the plaintiffs have not shown that the district court erred with regard to

their remaining claims. Accordingly, we affirm the district court’s grant of

summary judgment in favor of the defendants.

      AFFIRMED.




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