              Case: 16-11963     Date Filed: 11/01/2016   Page: 1 of 4


                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-11963
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:11-cv-01239-TWT


JANICE CANTRELL,
THE ESTATE OF ANTOINE CANTRELL,
A.C., JR.,
a minor,
A.C.,
minor, by and through their next friend,

                                                                Plaintiffs-Appellees,

                                         versus


WESLEY WHITE,
individually and in his official capacity as
a police officer of the City of College Park, Georgia,

                                                              Defendant-Appellant,

THE CITY OF COLLEGE PARK,
a Municipal Corporation of the State of Georgia,
d.b.a. College Park Police Department,

                                                                         Defendant.
              Case: 16-11963     Date Filed: 11/01/2016   Page: 2 of 4


                           ________________________

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

                                (November 1, 2016)

Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Officer Wesley White of the City of College Park, Georgia, appeals the

denial of qualified immunity in an action stemming from his fatal shooting of

Antoine Cantrell while arresting him for domestic assault. Janice Cantrell, as the

representative of her son’s estate and his children, filed a complaint that White’s

use of deadly force to arrest Antoine was excessive, in violation of the Fourth

Amendment, see 42 U.S.C. § 1983, and caused Antoine’s wrongful death, see Ga.

Code §§ 51-4-2, 51-4-5. The district court ruled that a material “question of fact

whether White’s use of deadly force was reasonable under the Fourth Amendment”

barred summary judgment. We affirm.

      The parties dispute whether Antoine was struggling with White at the time

of the shooting. According to White, Antoine defied commands to surrender,

White approached him from behind to apply handcuffs, the two men struggled for

control of White’s gun, and the gun discharged accidentally into Antoine’s back.

But the Cantrells proffered evidence that White shot Antoine after he surrendered.


                                          2
              Case: 16-11963      Date Filed: 11/01/2016   Page: 3 of 4


      The district court did not err when it ruled that “a reasonable jury could infer

that Cantrell, who was unarmed, did not ‘pose a threat of serious harm’ to White.”

See Tennessee v. Garner, 471 U.S. 1, 11 (1985); Perez v. Suszczynski, 809 F.3d

1213, 1218 (11th Cir. 2016). That inference could be drawn, as the district court

ruled, from the Cantrells’ “evidence that [Antoine] was on his knees with his hands

behind his head and had stopped resisting at the time of the shooting.” The

Cantrells’ forensic pathologist opined that Antoine was the victim of “an

‘execution-style’ shooting” based on the findings of the medical examiner that

Antoine sustained a close range gunshot wound, that the bullet entered Antoine’s

back between his third and fourth vertebrae and traveled upward slightly from left

to right until it lodged in his throat, that he had abrasions and bruising on his hands

and legs, and that he had soot on the sleeve of his shirt. Officers Tami Fowler and

Robert Northcutt testified that they saw White and Antoine tussling before the

shooting, but the district court ruled that the officers’ testimony was not dispositive

because “neither Fowler nor Northcutt witnessed the shooting.” A material factual

dispute exists about whether Antoine posed a threat of serious harm to White when

the shooting occurred.

      White argues that the Cantrells’ version of events conflicts with the

undisputed facts that there was no “powder residue on Antoine’s shirt sleeve, hand

or wrist” and that White’s gun was in “close or loose contact with [Antoine’s]


                                           3
              Case: 16-11963     Date Filed: 11/01/2016    Page: 4 of 4


skin,” but White failed to present this argument to the district court. In any event,

those undisputed facts do not establish conclusively that Antoine posed a threat of

serious harm to White. See Scott v. Harris, 550 U.S. 372 (2007). “A summary

judgment may be improper even though the basic facts are undisputed if the parties

disagree regarding the material factual inferences that properly may be drawn from

these facts.” Winters v. Highlands Ins. Co., 569 F.2d 297, 299 (5th Cir. 1978)

(quoting Lighting Fixture and Elec. Supply Co. v. Continental Ins. Co., 420 F.2d

1211, 1213 (5th Cir. 1969)). A reasonable jury could infer from the absence of

gunpowder on Antoine’s shirt and from the “close or loose contact” between the

gun and Antoine that he was not struggling with White when the gun discharged.

      We AFFIRM the denial of White’s motion for summary judgment based on

qualified immunity.




                                           4
