                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              APRIL 4, 2007
                             No. 06-12194                   THOMAS K. KAHN
                       ________________________                 CLERK


                D. C. Docket No. 04-00891-CV-ORL-22KRS

KENNETH LAMONTE WEBSTER,
USAF-ALI CASTLE,


                                                Plaintiffs-Appellants,

                                  versus

KEVIN BEARY, in his official capacity
as Sheriff of Orange County, Florida,
MICHAEL GRIGSBY, both individually
and in capacity as Deputy Sheriff
of Orange County, Florida,
ALEJANDRO FERRER, both individually
and in capacity as Deputy Sheriff
of Orange County, Florida,


                                                Defendants-Appellees.

                       ________________________

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

                              (April 4, 2007)
Before HULL and MARCUS, Circuit Judges, and BARZILAY,* Judge.

PER CURIAM:

       This 42 U.S.C. § 1983 lawsuit, brought by plaintiffs Kenneth Lamonte

Webster and Usaf-Ali Castle, arises out of a police shooting incident at a gas

station. The district court granted summary judgment to the police defendants on

qualified immunity grounds, and Webster and Castle appeal. After review and oral

argument, we affirm.

                                    I. BACKGROUND

       On the night of June 11, 2000, the Orange County, Florida Sheriff’s Office

conducted a special operation designed to locate stolen vehicles. As part of the

operation, deputy sheriffs were instructed to drive around Orange County and run

license plate numbers through their computers to determine whether the cars had

been reported as stolen.

       Defendants Michael Grigsby and Alejandro Ferrer, both Orange County

Deputy Sheriffs, were among the officers participating in this operation. Sergeant

Grigsby was driving a marked patrol car and was wearing a standard Orange

County Sheriff’s Office uniform, while Deputy Ferrer was driving an unmarked




       *
        Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.

                                                2
blue minivan and was wearing civilian clothes.1

       At approximately 11:30 p.m., Orange County Deputy Sheriff Dominick

Galiano came into contact with a vehicle that had been reported stolen, and he

radioed for assistance. Galiano followed the vehicle to a residence on Rose

Boulevard and transmitted the address over his police radio. The transmission was

heard by both defendant officers, Sergeant Grigsby and Deputy Ferrer. According

to Sergeant Grigsby, the address was that of a “known drug house.” Deputy

Galiano further transmitted that the vehicle contained two black male occupants,

one of whom entered the residence. Deputy Galiano then transmitted that the

vehicle had departed the Rose Boulevard residence and proceeded to the parking

lot of a gas station on Texas Avenue. Defendants Grigsby and Ferrer each

observed the suspect vehicle pull into the gas station, where it parked at the gas

pumps behind another vehicle already parked there. The suspect vehicle’s engine

remained on.

       The suspect vehicle was driven by plaintiff Webster. Plaintiff Castle sat in

the right front passenger seat. According to Webster, he had rented the vehicle for


       1
         Deputy Ferrer claims that he also was wearing a black smock with the words “Orange
County Sheriff” printed in large white letters on the front and back. However, Webster and
Castle dispute that Ferrer was wearing any clothing that identified him as a police officer. For
purposes of this opinion, which addresses whether Sergeant Grigsby and Deputy Ferrer are
entitled to qualified immunity, we take the facts in the light most favorable to Webster and
Castle. See Vinyard v. Wilson, 311 F.3d 1340, 1343 n.1 (11th Cir. 2002).

                                                 3
$50 cash, for three days, from a woman named “Maureen.”2 Webster and Castle

admit that they had been smoking marijuana on the day in question, and in fact,

they went to the gas station in part because Webster had the “munchies.” Webster

testified that he did not think he was still under the influence of marijuana by the

time he and Castle arrived at the gas station; however, Castle testified that he

believed they probably were still feeling the effects of the marijuana at that time.

       In any event, after Sergeant Grigsby and Deputy Ferrer observed Webster

park the suspect vehicle at the gas station, they moved to apprehend Webster and

Castle. Sergeant Grigsby pulled behind Webster’s car, but Grigsby did not activate

the overhead lights on his marked patrol car because he did not want to eliminate

the element of surprise. Meanwhile, Deputy Ferrer pulled his unmarked minivan

in front of Webster’s car, on the opposite side of the pumps at which Webster was

parked. Grigsby and Ferrer each exited their vehicles and approached Webster’s

vehicle with their weapons drawn—Grigsby from behind Webster’s vehicle, and

Ferrer from the front and slightly to the side.3

       Ferrer contends that he made eye contact with Webster, who then looked

backwards over his shoulder in the direction of Grigsby. Ferrer further contends

       2
           Ms. Maureen Kalkstein reported the vehicle as stolen.
       3
        Grigsby undisputedly was armed with his service weapon. Ferrer maintains he held a
shotgun, but Webster and Castle claim that Ferrer held a handgun. We accept Webster and
Castle’s assertion for purposes of this opinion.

                                                  4
that he shouted “Orange County Sheriff’s Office” while pointing his weapon at the

vehicle. Webster and Castle, however, assert that they are not sure they heard

Ferrer say anything at all, and Webster denies that he ever looked backwards,

either by turning his head or looking in the car’s mirrors. Webster testified that he

would not have left or tried to drive away if he had known that Ferrer was a police

officer, but he feared that Ferrer was planning to rob either him or the gas station,

and he “just wanted to be safe” and to leave the area as quickly as possible.

      It is undisputed that Webster reacted to seeing Ferrer by immediately placing

the car in reverse, although there is not precise agreement as to how long the car

was in reverse and how far backwards the car moved. According to Ferrer and

Grigsby, Webster put the car in reverse and “began to accelerate in Sergeant

Grigsby’s direction at a quick pace.” Similarly, Deputy Sean McCormack, who

observed the incident, stated that he observed Webster’s vehicle back up at “an

accelerated pace.” Deputy Steven Knapp, who also observed the incident, averred

that Webster’s vehicle “lurched back as if the driver . . . had hit the gas pedal to

back up quickly,” and further stated that Webster backed up “aggressive[ly]” and

“rapidly.”

      Webster himself testified that he put the vehicle in reverse for two to three

seconds, and although he was not sure how far backwards the vehicle moved, he



                                            5
maintained that “it was not that far.” Webster admitted, however, that the car did

not simply idle backwards after he placed it in reverse. Instead, Webster testified

that while the car was in reverse, he gave the car “some gas to get out of there

quickly.” Again, Webster maintains that he did not look backwards or in his

mirrors while he had the car in reverse.

       Castle testified that he was looking down when the incident happened, and

when he heard Webster curse, he looked up. At that point, according to Castle,

Webster was putting the car in reverse. Castle testified that once Webster had the

car in reverse, he hit the gas “just a little bit and [then hit] the brakes.” According

to Castle, the vehicle moved back “probably . . . an inch.”

       Immediately after placing the car in reverse, Webster put the car in drive and

pulled forward. According to Webster, he heard two gunshots as soon as his

vehicle started moving forward.4 The car then drove forward in a semicircle to the

right and essentially crashed into the corner of the gas station building.

       According to Grigsby, he had intended to announce himself as a police

officer as he approached Webster’s car, but he did not have time because the car

began moving backwards towards him. Grigsby contends that at the moment



       4
         The precise timing of the gunshots is disputed. Grigsby contends that the vehicle was
still moving backwards when he fired his weapon, and after he fired, Webster’s vehicle
continued to travel backwards for a short distance and then moved forward.

                                                6
Webster’s vehicle moved towards him at what he perceived to be a high rate of

speed, he believed his life to be in “imminent danger” because he thought that

Webster intended to run him over.5 In response to the perceived threat from

Webster’s car, Grigsby fired two shots from his service weapon. Ferrer also fired

his weapon, based on his belief that “the driver was attempting to run Sergeant

Grigsby over with his vehicle.” Although Ferrer’s shot struck the driver’s side

door of Webster’s vehicle, at least one of Grigsby’s shots struck Webster in the left

shoulder. Castle was not shot. After Webster’s car came to rest at the corner of the

gas station building, both Webster and Castle were arrested.

       In June 2004, Webster and Castle filed this § 1983 suit against Sergeant

Grigsby, Deputy Ferrer, and Kevin Beary, the Sheriff of Orange County.6 Webster

and Castle contend that Grigsby and Ferrer violated their Fourth Amendment rights

to be free from excessive force.7

       The district court granted defendants’ motions for summary judgment,


       5
         Grigsby estimates that he was less than six feet away from Webster’s vehicle at the time
of the incident. Additionally, Grigsby asserts that at the time of the incident, he was aware of at
least two other instances in which Orange County Deputy Sheriffs had been struck and killed in
the line of duty by stolen vehicles driven by suspects.
       6
           Beary is sued only in his official capacity.
       7
         With regard to their claim against Beary, Webster and Castle contend that he
“intentionally, knowingly, and recklessly failed to instruct, supervise, control and discipline”
Grigsby and Ferrer “in their duties to refrain from: unlawfully using or promoting use of
unreasonable and excessive force.”

                                                     7
concluding that defendants were entitled to qualified immunity because Grigsby

and Ferrer did not violate the constitutional rights of Webster and Castle. Webster

and Castle timely appealed.

                                     II. DISCUSSION

       Webster and Castle contend that the district court erroneously failed to

consider all of the evidence before it, and further erred in construing the evidence

in the light most favorable to defendants. Webster and Castle contend that because

of those errors, the district court incorrectly granted qualified immunity to

defendants. We disagree with Webster and Castle.8

       Qualified immunity protects government officials sued in their individual

capacities as long as 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) (citation omitted). An

officer is entitled to qualified immunity if his actions were objectively reasonable;

that is, “if an objectively reasonable officer in the same situation could have

believed that the force used was not excessive.” Id. “‘The purpose of this

immunity is to allow government officials to carry out their discretionary duties



       8
         We review the district court’s grant of summary judgment de novo, applying the same
legal standards as the district court. We draw all inferences in favor of the non-movants. See
Robinson v. Arrugueta, 415 F.3d 1252, 1254-55 (11th Cir. 2005).

                                                8
without the fear of personal liability or harassing litigation, protecting from suit all

but the plainly incompetent or one who is knowingly violating the federal law.’”

Id. (citation omitted).

      To receive qualified immunity, an officer must first show that he was acting

within the scope of his discretionary authority. Id. Here, it is undisputed that

Sergeant Grigsby and Deputy Ferrer were acting in the scope of their discretionary

authority.

      Because it is undisputed that Grigsby and Ferrer were acting in the scope of

their discretionary authority, the burden shifts to Webster and Castle to establish

that the qualified immunity defense does not apply. See id. There is a well-

established two-part test for this inquiry. First, we must determine whether the

facts alleged, taken in the light most favorable to plaintiffs, establish that Sergeant

Grigsby and Deputy Ferrer violated plaintiffs’ constitutional rights. See id.

Second, if plaintiffs suffered a violation of a constitutional right under their version

of the facts, we must determine whether that right was clearly established at the

time the violation occurred. See id.

      The Fourth Amendment’s protection against unreasonable searches and

seizures encompasses the right to be free from the use of excessive force during an

arrest. Id. at 1347. However, the determination of whether the manner of arrest



                                            9
was reasonable must be “judged on a case-by-case basis from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.

(quotation marks and citations omitted). A court should consider several factors in

evaluating an excessive force claim, including: “‘(1) the need for the application of

force; (2) the relationship between the need and amount of force used; and (3) the

extent of the injury inflicted.’” Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th

Cir. 2004) (footnote and citation omitted). The need for the application of force is

measured by: (1) the severity of the crime; (2) the danger to the officer or others;

and (3) the risk of flight by the suspect. See Vinyard, 311 F.3d at 1347.

      In this case, we agree with the district court that the facts, even when viewed

in the light most favorable to plaintiffs, do not support a finding that Sergeant

Grigsby and Deputy Ferrer violated plaintiffs’ constitutional rights. Webster and

Castle were under suspicion of grand theft auto, and additionally, Grigsby and

Ferrer were aware that Webster and Castle had visited a known drug house just

prior to arriving at the gas station. Grand theft auto is obviously a serious crime,

see Ramirez v. Castro, 365 F.3d 755, 769 (9th Cir. 2004), and, in addition, we have

previously recognized that drug traffickers are often armed, see, e.g., Carr v.

Tatangelo, 338 F.3d 1259, 1262 n.1 (11th Cir. 2003). Moreover, from the

perspective of a reasonable officer on the scene, it obviously appeared that Webster



                                          10
and Castle were a flight risk, given that Webster himself concedes that he tried to

drive away when he saw Ferrer, and wanted to “get out of there quickly.”

       The contested issue on appeal is whether a reasonable officer on the scene

would have believed that Webster was attempting to run Sergeant Grigsby over

with the vehicle when he drove the car backwards. Grigsby and Ferrer argue that

the district court correctly concluded that they reasonably believed Grigsby’s life

was in danger, which justified their use of deadly force and the serious shooting

injury suffered by Webster. Webster and Castle, by contrast, contend that the

district court erred in concluding that it was reasonable for Sergeant Grigsby and

Deputy Ferrer to have believed that Grigsby’s life was in danger. Webster and

Castle specifically rely on Castle’s testimony that the car moved backwards

“probably . . . an inch.” According to Webster and Castle, the district court

impermissibly ignored Castle’s testimony in this regard, thereby construing

disputed evidence in the light most favorable to defendants.

       We disagree with Webster and Castle. The district court found, in pertinent

part, that:

       it is undisputed that Webster drove the vehicle in reverse and arguably
       towards the direction where Sergeant Grigsby was standing.
       Plaintiffs’ own testimony is that Webster placed the vehicle he was
       driving in reverse once he saw a man, who we now know to be
       Deputy Ferrer, approach the vehicle. Moreover, Webster[] states that
       he was in a “hurry” to get out of the area, further corroborating the

                                          11
      officers’ testimony that the suspect vehicle moved in a quick and
      aggressive manner while it was in reverse.

(Emphasis and footnote omitted).

      In our view, the district court’s holding was not contradictory to, and did not

impermissibly ignore, Castle’s testimony. Castle’s testimony was simply that the

car moved backwards “probably . . . an inch.” Nothing in Castle’s testimony

contradicts the district court’s findings that “Webster drove the vehicle in reverse”

and that “Webster placed the vehicle he was driving in reverse once he saw . . .

Deputy Ferrer.” Indeed, Castle’s testimony actually supports the district court’s

statement that it is “undisputed that Webster drove the vehicle in reverse.”

Similarly, we disagree with plaintiffs’ contention that Castle’s testimony

contradicts the district court’s finding that Webster’s vehicle “moved in a quick

and aggressive manner while it was in reverse.” We see no reason why, even

accepting that Webster’s vehicle moved “probably . . . an inch,” the vehicle could

not have also “moved in a quick and aggressive manner.” Each of the four police

officer witnesses and Webster—who admitted that he was in a hurry to leave and

did not merely back up, but in fact gave the car gas when it was in reverse—gave

testimony consistent with the district court’s finding that the vehicle moved

backwards in a “quick and aggressive manner.”




                                          12
       Additionally, this Court has reviewed the surveillance video of the incident.9

While the precise distance traveled by Webster’s vehicle certainly cannot be

determined by watching the video, Castle’s estimate that the car backed up

“probably . . . an inch” is simply unreasonable. In reviewing a motion for

summary judgment, we are only compelled to take reasonable inferences in favor

of the non-movant. See Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005);

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004). “[A] mere scintilla

of evidence in support of the non-moving party’s position is insufficient to defeat a

motion for summary judgment.” Kesinger, 381 F.3d at 1247. No reasonable jury

could conclude, after watching the videotape, that Webster drove his car

backwards “probably . . . an inch.” Indeed, it is particularly notable, in light of the

video and the other witness testimony, that Castle only testified that the car moved

backwards “probably . . . an inch.” Obviously, Castle was unable to unequivocally


       9
         We note that before the district court, Webster and Castle argued that the surveillance
video supported Webster’s testimony that Sergeant Grigsby discharged his weapon only after
Webster began to move the car forward. However, on appeal, plaintiffs do not discuss this point,
instead only arguing that the district court erroneously failed to credit Castle’s testimony that the
car moved backwards approximately one inch. Moreover, the Court agrees with the district
court that the video is inconclusive with regard to whether Grigsby fired while Webster’s vehicle
was going backwards or forwards. And in any event, the Court further agrees with the district
court that, even if we accept plaintiffs’ possibly-abandoned contention that Grigsby fired after
Webster’s car began to move forward, the uncontradicted evidence still establishes that the entire
incident occurred in mere seconds and that in those few seconds, Grigsby and Ferrer reasonably
perceived Grigsby’s life was in danger on the basis of Webster having aggressively backed his
vehicle towards Grigsby, regardless of whether Grigsby fired while the vehicle was still backing
towards him or whether he fired a split-second thereafter.

                                                 13
state that the car moved backwards one inch, and instead, could only estimate the

distance.

      But even if we accept Castle’s testimony that the car reversed “probably . . .

an inch,” we find instructive, as did the district court, our recent case of Robinson

v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005), cert. denied, __ U.S. __, 126 S. Ct.

1063 (2006), with regard to the question of whether a reasonable officer in the

same situation would have believed that deadly force was necessary. In Robinson,

Arrugueta, a special agent on a drug task force, followed a suspect vehicle that had

been identified as carrying a heroin supplier. 415 F.3d at 1253-54. Arrugueta,

driving an unmarked vehicle, followed the suspect vehicle as it stopped two feet

behind a civilian car waiting at a traffic light. Id. at 1254. Arrugueta exited the car

and positioned himself between the suspect vehicle and the civilian vehicle. Id.

Arrugueta pointed his gun at the suspect, who was sitting somewhere between the

front right passenger seat and the driver’s seat, verbally identified himself as

“Police,” and told the suspect to put his hands up. Id. The suspect made eye

contact with Arrugueta; defied the order to raise his hands; grinned; and the car

slowly began to move forward at a speed of one to two miles per hour. Id.

Arrugueta shot and killed the suspect.

      We concluded that Arrugueta’s use of deadly force under those



                                          14
circumstances did not violate the suspect’s constitutional rights, stating that while

“[e]ven if in hindsight the facts show that Arrugueta perhaps could have escaped

unharmed . . . a reasonable officer could have perceived that [the suspect] was

using [his vehicle] as a deadly weapon. Arrugueta had probable cause to believe

that [the suspect] posed a threat of serious physical harm.” Id. at 1256. Similarly,

in this case, we believe it was objectively reasonable for Sergeant Grigsby and

Deputy Ferrer to have concluded that Webster posed a threat of serious physical

harm to Grigsby. Webster undisputedly backed his car towards Grigsby in a quick

and hurried manner as Grigsby stood less than six feet behind Webster’s car.

Grigsby and Ferrer, with their guns already drawn and under the belief that they

were dealing with not only suspected automobile thieves but also possibly drug

traffickers, reacted in an objectively reasonable manner given the totality of the

tense and uncertain circumstances, even if their reaction was, in hindsight,

arguably less-than-ideal.

                                III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to defendants.

      AFFIRMED.




                                          15
