[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
DEC 06, 2010
No. 10-11129 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:07-cv-21728-ASG
ERLIS JEAN-BAPTISTE,
lllllllllllllllllllllPlaintiff-Appellee,
versus
JOSE GUTIERREZ,
Police Officer, Miami-Dade Police Department,
lllllllllllllllllllllDefendant-Appellant.
_______________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 6, 2010)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PRYOR, Circuit Judge:
This appeal presents the issue whether a police officer is entitled to
qualified immunity for using deadly force against an armed suspect who was lying
in wait after having fled from the vicinity of an armed burglary and robbery. Jose
Gutierrez, an officer of the Miami-Dade Police Department, shot Erlis Jean-
Baptiste repeatedly after Officer Gutierrez encountered Jean-Baptiste following a
high-speed car chase and a later chase by foot. Jean-Baptiste sued Officer
Gutierrez for allegedly using excessive force during the encounter, and Officer
Gutierrez moved for summary judgment based on qualified immunity. The district
court denied the motion on the ground that Officer Gutierrez acted unreasonably
by continuing to shoot after his first or second bullet caused Jean-Baptiste to fall
to the ground. We hold that Officer Gutierrez acted reasonably and is entitled to
qualified immunity. We reverse and render judgment in favor of Officer
Gutierrez.
I. BACKGROUND
While on patrol in a marked vehicle, Officer Gutierrez received a report to
be on the alert for two black men who were suspected of having committed an
armed burglary and robbery and were driving a red Dodge Neon car. Officer
Gutierrez later observed a red Neon car traveling at a high rate of speed drive on
the shoulder of the road and through a red traffic light. Officer Gutierrez activated
his emergency lights and followed the speeding car through several traffic lights
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until it suddenly turned right and crashed into a wall in the middle of the street.
By the time Officer Gutierrez reached the car, Jean-Baptiste and his cohort, Sidney
Jean, had fled on foot into a residential area.
Ernesto Perez, who had been servicing an air conditioning unit on the roof
of a nearby building, indicated to Officer Gutierrez that the two suspects had fled
down the street. Jean-Baptiste and Jean, who were clad in black clothing and
wearing black gloves, encountered two police officers who were serving eviction
notices. The officers chased Jean-Baptiste and Jean and forced the suspects to
backtrack down the same street.
When Officer Gutierrez saw Jean-Baptiste and Jean running toward him,
Officer Gutierrez saw that one of them was holding an “unknown object” that
Officer Gutierrez thought was a gun. Officer Gutierrez chased Jean-Baptiste and
Jean behind a house, where Jean jumped a fence. Officer Gutierrez stopped and
saw a shed on his left side.
When he turned to face the shed, Officer Gutierrez saw Jean-Baptiste
holding a gun and standing eight to ten feet away. Officer Gutierrez shot
continuously 14 bullets, and eight of those bullets struck Jean-Baptiste. Jean-
Baptiste suffered six gunshot wounds in his legs and one gunshot wound both in
his foot and in his testicles.
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After Officer Gutierrez lowered his pistol, he approached Jean-Baptiste and
saw that his gun was lying a foot or two away. Officer Gutierrez reported to the
police department that “shots had been fired,” ejected his empty magazine and
reloaded his pistol, and proceeded to secure the area. Jean-Baptiste suffered
injuries that confine him to a wheelchair.
In the accounts given by Officer Gutierrez and Jean-Baptiste, there is no
dispute that Jean-Baptiste was armed and that Officer Gutierrez fired his pistol
without warning, but there are marked disputes about the location of Jean-
Baptiste’s gun and the reason Officer Gutierrez shot Jean-Baptiste repeatedly.
Officer Gutierrez alleged that Jean-Baptiste was pointing a gun at Officer
Gutierrez and “signaling” that he would shoot. Officer Gutierrez stated that he
fired his pistol continuously because Jean-Baptiste “was still standing pointing
[his] gun at me” and “finally went down . . . after my last round.” Jean-Baptiste
alleged that he did not point his gun at or indicate he would shoot Officer
Gutierrez. Jean-Baptiste also alleged that he fell to the ground after being struck
in the groin by the first or second bullet, after which Officer Gutierrez
“maliciously and sadistically” continued to shoot Jean-Baptiste. Notably, Jean-
Baptiste never stated whether he retained or lost control of his gun when he fell.
Officers found a 9 millimeter semi-automatic pistol on the ground near
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clothes that paramedics had cut off Jean-Baptiste. The safety lock of the semi-
automatic pistol had been disengaged, the hammer was cocked partially and,
although the chamber of the pistol was empty, the magazine attached to the pistol
contained 12 rounds of ammunition. Jean-Baptiste wore an ankle sock that had
been penetrated by a “single gunshot” at its “top” and had “a corresponding exit
hole in the heel,” and police found an “apparent projectile . . . embedded in the
heel of [Jean-Baptiste’s] right sneaker.” Officers also found an empty ammunition
magazine that had been ejected from a Heckler & Koch compact 9 millimeter
service pistol. Forensic testing confirmed that twelve spent casings discovered in
the grass adjacent to the empty magazine had been fired from Officer Gutierrez’s
service pistol.
Jean-Baptiste was indicted for eight crimes: burglary with assault or battery
while armed; kidnapping with a weapon; aggravated battery with a deadly
weapon; robbery with a deadly weapon or firearm; armed carjacking; unlawful
possession of a firearm by a convicted felon; unlawful possession of a firearm by a
violent career criminal; and aggravated assault on Officer Gutierrez. The firearm
charges were dismissed before trial. A jury found Jean-Baptiste guilty of burglary,
kidnapping, aggravated battery, robbery, and carjacking, but acquitted him of
assaulting Officer Gutierrez.
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After his trial, Jean-Baptiste filed a complaint that Officer Gutierrez used
excessive force during their encounter. Jean-Baptiste alleged that Officer
Gutierrez shot him without “provocation or cause.” Jean-Baptiste also alleged that
he fell to the ground “immediately” after being shot, and Officer Gutierrez acted
unreasonably by continuing to shoot until he emptied the magazine of his pistol.
Officer Gutierrez moved for summary judgment based on qualified
immunity. Officer Gutierrez argued that he acted reasonably in using deadly force
to protect himself and persons near the scene and, in the alternative, his actions did
not violate clearly established law. To support his argument, Officer Gutierrez
submitted his sworn statements, statements by co-defendant Jean and the police
officers who chased Jean and Jean-Baptiste, and crime scene and forensic reports.
Jean-Baptiste conceded that Officer Gutierrez had acted within the scope of
his discretionary authority, but Jean-Baptiste argued that issues of material fact
precluded summary judgment based on qualified immunity. Jean-Baptiste argued
that Officer Gutierrez acted unreasonably by using deadly force, and Jean-Baptiste
attached to his response an affidavit stating that he did not point a gun at Officer
Gutierrez or set the trigger in a cocked position. Jean-Baptiste also attached to his
response the trial testimony of eyewitness Perez, but Perez acknowledged that he
could not see Officer Gutierrez fire his pistol and that he “was too far” to see if
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Jean-Baptiste had anything in his hand when he was shot.
The district court denied Officer Gutierrez’s motion for summary judgment
on the ground that he acted unreasonably by using deadly force after the need for
force had subsided. The district court viewed the evidence in the light most
favorable to Jean-Baptiste and found that Officer Gutierrez “maliciously and
sadistically shot a non-resisting, non-fleeing [Jean-Baptiste] an additional ten to
twelve times from close range after having incapacitated him with an initial shot to
the genital-region and after [Jean-Baptiste]’s weapon was no longer within his
control.” The district court “conclude[d] that even if the initial use of deadly force
was constitutionally permissible, the additional ten or twelve shots fired while
[Jean-Baptiste] lay unarmed on the ground in an incapacitated state constituted a
Fourth Amendment violation by Defendant Gutierrez.”
II. STANDARD OF REVIEW
We review de novo the denial of a motion for summary judgment based on
qualified immunity. Townsend v. Jefferson Cnty., 601 F.3d 1152, 1157 (11th Cir.
2010). Summary judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56. At this juncture, the evidence and all reasonable
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inferences from that evidence are viewed in the light most favorable to the
nonmovant, but those inferences are drawn “only ‘to the extent supportable by the
record.’” Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (quoting Scott v.
Harris, 550 U.S. 372, 381 n.8, 127 S. Ct. 1769, 1776 n.8 (2007)).
III. DISCUSSION
It is well-settled that courts must account “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.” Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872
(1989). 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.’” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (quoting
Willingham v. Loughnan, 261 F.3d 1178, 1186 (11th Cir. 2001)). “Fourth
Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.
Ct. at 1872–73. To determine if the use of force exceeded that which is necessary,
courts are required to balance carefully “‘the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the countervailing
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governmental interests at stake.’” Id. at 396, 109 S. Ct. at 1871 (quoting
Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699 (1985) (internal
quotation marks omitted)).
Any use of force must be reasonable. Id. at 395, 109 S. Ct. at 1871.
Reasonableness is dependent on all the circumstances that are relevant to the
officer’s decision to use deadly force, including the seriousness of the crime,
whether the suspect poses an immediate danger to the officer or others, whether
the suspect resisted or attempted to evade arrest, and the feasability of providing a
warning before employing deadly force. Penley, 605 F.3d at 850. Perspective
also is crucial to the analysis: “[t]he only perspective that counts is that of a
reasonable officer on the scene at the time the events unfolded.” Garczynski v.
Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009); see also Graham, 490 U.S. at
396, 109 S. Ct. at 1872 (explaining that a “standard of reasonableness at the
moment applies”).
Officer Gutierrez was entitled to qualified immunity if he “‘reasonably
could have believed that probable cause existed, in light of the information [he]
possessed[,]’” to shoot Jean-Baptiste, even if that belief was mistaken.
Garczynski, 573 F.3d at 1167 (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th
Cir. 1997)). Officer Gutierrez’s use of force is judged objectively, and he is
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shielded from liability “unless application of [that] standard would inevitably lead
every reasonable officer in [his] position to conclude the force was unlawful.”
Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993).
Officer Gutierrez found himself in a precarious situation. A suspect of
violent crimes who had attempted to elude Officer Gutierrez suddenly confronted
Officer Gutierrez. The suspect was armed and posed a threat of serious physical
injury to Officer Gutierrez and to citizens in the surrounding residential area.
Officer Gutierrez was forced to decide in a matter of seconds whether to employ
deadly force.
Officer Gutierrez reasonably perceived the situation as an ambush that
required the use of deadly force. Regardless of whether Jean-Baptiste had drawn
his gun, Jean-Baptiste’s gun was available for ready use, and Gutierrez was not
required to wait “and hope[] for the best.” Scott, 550 U.S. at 385, 127 S. Ct. at
1778. “[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.”
Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007). Officer Gutierrez’s use of
deadly force was objectively reasonable.
A police officer is entitled to continue his use of force until a suspect
thought to be armed is “fully secured.” Crenshaw v. Lister, 556 F.3d 1283, 1293
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(11th Cir. 2009). We held in Crenshaw that an officer acted reasonably by using
the force exerted by a police canine to detain a suspect until he could be
handcuffed. Id. at 1291–93. The suspect was thought to have committed at least
one, and possibly two armed robberies and at night had fled from the police in a
car, crashed into a patrol car, and then fled on foot. Id. at 1285, 1291. Although
the suspect announced he wanted to surrender, he remained hidden in thick
foliage. Id. at 1285, 1291–92. The officer reasonably believed that the suspect
was armed and was entitled to use the force exerted by the canine to apprehend the
suspect, even though the canine bit the suspect 31 times. Id. at 1291–93. The
threat to the officer did not end when the suspect decided ostensibly to surrender.
Based on the suspect’s earlier conduct, “it was objectively reasonable for [the
officer] to question the sincerity” of the suspect “who, up to that point, had shown
anything but an intention of surrendering[,]” and for the officer to continue to use
force until the officer eliminated the possibility that he might be harmed. Id. at
1293.
Officer Gutierrez reasonably responded with deadly force, and he was not
required to interrupt a volley of bullets until he knew that Jean-Baptiste had been
disarmed. Officer Gutierrez faced more than a possibility of harm. Officer
Gutierrez was confronted by a suspect of a dangerous crime who was lying in wait
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and holding a gun. Until Officer Gutierrez verified that Jean-Baptiste was
disarmed, Officer Gutierrez had “no reason to trust that [Jean-Baptiste] would not
suddenly attempt to do him harm.” Id. at 1293.
The district court found that Officer Gutierrez acted “maliciously and
sadistically,” but any “subjective beliefs regarding the circumstances [were]
irrelevant to the qualified immunity inquiry.” Whittier v. Kobayashi, 581 F.3d
1304, 1310 (11th Cir. 2009) (emphasis omitted). The decision about qualified
immunity turns on the objective reasonableness of the use of force. “An officer’s
evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.” Graham, 490 U.S. at 397, 109 S. Ct. at
1872.
The district court erred in denying Officer Gutierrez’s motion for summary
judgment based on qualified immunity. There is no dispute that Officer Gutierrez
acted within his discretionary authority when he used deadly force to secure Jean-
Baptiste, and Jean-Baptiste failed to prove that Officer Gutierrez was not entitled
to qualified immunity. See Penley, 605 F.3d at 849. Officer Gutierrez acted
reasonably by using deadly force and in so doing did not violate a constitutional
right of Jean-Baptiste. Officer Gutierrez was entitled to qualified immunity.
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VI. CONCLUSION
We REVERSE the decision to deny Officer Gutierrez qualified immunity,
and we RENDER a judgment in favor of Officer Gutierrez.
REVERSED AND RENDERED.
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