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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 14-11014
Non-Argument Calendar
D.C. Docket No. 2:10-cv-00099-LGW-JEG
CHRISTOPHER LENNING,
Plaintiff-Appellant,
versus
BRANTLEY COUNTY, GEORGIA,
SHERIFF ROBERT THOMAS,
GLYNN COUNTY, GEORGIA,
JOHN SIMPSON, JR.,
KEVIN JONES,
Defendants-Appellees,
GEORGIA DEPARTMENT OF PUBLIC SAFETY,
Defendant.
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Appeal from the United States District Court
for the Southern District of Georgia
(August 28, 2014)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
After an armed standoff with police, plaintiff Christopher Lenning brought
suit pursuant to 42 U.S.C. § 1983, alleging, inter alia, that defendant Kevin Jones
used excessive force to seize him in violation of the Fourth Amendment. The
district court granted defendant Jones’s motion for summary judgment, and
Lenning appeals.
After review of the record and the parties’ briefs, we affirm.
I. BACKGROUND
A. Lenning’s Initial Aggravated Assault
At approximately 7 p.m. on June 23, 2008, a citizen reported that a man was
walking down a road in Brantley County, Georgia while pointing a long-barreled
gun at his head. Brantley County law enforcement officers responded to the scene
and found plaintiff Lenning walking by the side of the road with a gun.
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The officers ordered Lenning to drop his gun. Instead of complying,
Lenning—still armed—walked towards the officers’ patrol car. After ignoring
more commands to drop his gun, Lenning opened his gun’s action and looked
through the barrel; he then quickly closed the action and resumed his march
towards the officers. Lenning pointed his gun at the officers and shouted, “Y’all
are going to have to shoot me.”
When he was approximately ten yards from the officers’ patrol car, Lenning
again yelled at the officers to shoot him. Then, Lenning walked away, stopping
“every so often” to point his gun at the officers. When Lenning reached a wooded
area, he began to run, eventually making it to his nearby home.
Because Lenning had pointed his gun at multiple officers and threatened
them, a Brantley County lieutenant secured a warrant for Lenning’s arrest.
B. Request for SWAT Team Assistance
The responding officers followed Lenning to his home, where he had
barricaded himself. Lenning continued to ignore the officers’ demands to drop his
gun.
After Lenning refused arrest and refused to surrender his gun, the Brantley
County Police Department requested assistance from the Glynn County, Georgia
SWAT team and the Georgia state patrol SWAT team.
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C. Attempted Negotiations
At approximately 8 p.m., Trooper Robbie Jump, a senior Georgia state
trooper and trained crisis and hostage negotiator, responded to Brantley County’s
request for assistance. After arriving at Lenning’s home, Trooper Jump took cover
behind another officer’s patrol car, which was approximately 100 feet from
Lenning’s home. The responding officers and Lenning were armed—each side
pointing a gun at the other and each side telling the other to put its weapon down.
While in this tense standoff, Trooper Jump began a dialog with Lenning over
the patrol car’s public address system. Trooper Jump’s negotiation with Lenning
lasted more than an hour. Initially, Lenning stood in the road in front of his home
waving a long-barreled gun back and forth and “hollering out different slurs.”
Repeatedly, Trooper Jump told Lenning to drop his gun. Lenning refused.
Multiple times, Lenning said that he had more guns and that his home was
“trapped with C4.” During the negotiation, Lenning ran several times from the
yard, to the front porch, to the inside of his home.
Lenning “kept coming out swinging [his gun] around, threatening to shoot
[the officers].” The officers took cover behind vehicles and other objects to ensure
their safety. But, Lenning “kept coming, waving the gun, [and] threatening to kill
[them].”
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Eventually, Trooper Jump convinced Lenning to relinquish his weapon in
exchange for a pack of cigarettes. However, after this gun-for-cigarettes exchange,
Lenning immediately pulled a pistol from the back of his pants.
Notwithstanding this setback, Trooper Jump continued his negotiations,
which were “strictly yelling back and forth.” Trooper Jump suspected that
Lenning was under the influence of drugs or alcohol because Lenning would “get
very high and irate, holler, scream, yell; and, then, in a few minutes, he would calm
down.”
D. Glynn County SWAT Team
Night fell, and it became dark. At some point, the Glynn County SWAT
team arrived on the scene. After receiving briefing, members of that SWAT team
began to set up an “inner” perimeter around Lenning’s home, and the Brantley
County officers retreated and formed an “outer” perimeter. The inner perimeter
was designed to contain Lenning to prevent his escape, and the outer perimeter was
designed to keep civilians out of the volatile area. The Glynn County SWAT team
expected to maintain the inner perimeter until the Georgia state patrol SWAT team
arrived and took over that responsibility. 1
1
The Georgia state patrol SWAT team did not arrive on the scene during the events
relevant to this case.
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Lenning continued his prior behavior of running onto the road and then
running back into his home for ten or fifteen minutes. Lenning did this several
times. After one of his many trips inside his home, Lenning came out of his home
armed with a long-barreled gun.
E. SWAT Team Members Jones and Hogue’s Approach
Glynn County SWAT team members were assigned to secure each corner of
Lenning’s home. Relevant to this appeal, SWAT team members Kevin Jones and
Garrett Hogue were assigned to the front, right corner of Lenning’s home, near a
parked car. Officer Jones carried two guns and a Taser that had a range of 25 feet.
Officer Hogue was also armed.
To reach their assigned post at the front, right corner of Lenning’s home,
Officers Jones and Hogue first made their way across a wooded lot across the
street from Lenning’s home. As they did so, Lenning shouted that he heard their
movement. Officers Jones and Hogue immediately stopped their approach.
Sometime later, Lenning went into his home, which gave Officers Jones and
Hogue an opportunity to continue towards their assigned position. After Jones and
Hogue crossed the road in front of Lenning’s home, they entered an undeveloped
lot to the right of his home. However, at that point, Lenning—still armed—left his
house and returned to his front yard. Because of Lenning’s untimely return and to
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avoid detection, Jones and Hogue were forced to take cover by lying prone in a
ditch beside Lenning’s front yard. At this point, Jones was 57 feet from the car in
Lenning’s driveway, which meant that Jones was outside the 25-foot operating
range of his Taser.
F. Lenning’s Attempted Shot and Jones’s Response
At some point, Lenning sat down in the driver’s seat of a car parked in his
front yard and smoked a cigarette. Trooper Jump continued to dialog with
Lenning, repeating his order to put his gun down.
Lenning screamed that Trooper Jump needed to tell the officers to back
away. Trooper Jump responded that the officers had moved away from Lenning’s
house. Lenning retorted that he did not believe Trooper Jump and said, “I can see
them and I’m going to fucking kill them.”
Lenning then heard something from the woods near his driveway where
Officers Jones and Hogue had taken cover. Lenning got out of the car, threw
himself and his long-barreled gun across the hood of the car, aimed at the woods
where Officers Jones and Hogue were positioned, and yelled in their direction,
“I’m going to shoot you. I’m going to kill you.” Trooper Jump told Lenning, “Put
the gun down. We don’t need it to go down like this.”
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Staring down the barrel of Lenning’s gun and unable to see any part of
Lenning’s body other than his head, Officer Jones fired, striking Lenning in the
eye.
G. Call for Assistance and Retrieval of Lenning’s Weapon
After Lenning was shot, officers ran towards him and called an ambulance.
Officers retrieved Lenning’s long-barreled gun from the hood of his car and found
it “cocked back as if somebody was preparing to shoot it.” They also discovered
that the gun was unloaded. However, given the angle from which Officer Jones
saw Lenning aim his gun, Jones was unable to tell whether Lenning’s gun was
loaded.
Lenning lost his eye; he also lost his memory of the events in and around
June 23, 2008.
H. Subsequent History
For his acts on June 23, 2008, Lenning pled guilty in state court to one count
of felony obstruction and six counts of aggravated assault. He received an
aggregate 30-year sentence for these offenses.
Lenning brought this civil action against Brantley County, Glynn County,
the Georgia Department of Public Safety, Brantley County Sheriff Robert Thomas,
Lieutenant John Simpson, and SWAT team member Jones. Lenning’s complaint
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alleged federal constitutional claims, including excessive force claims, and state
law tort claims.
After discovery, the defendants moved for summary judgment on all of
Lenning’s claims. The district court granted the defendants’ motion. Lenning now
appeals two of his claims against defendant Jones: excessive force and state law
negligence. 2
II. EXCESSIVE FORCE CLAIM
Lenning alleges that Glynn County Officer Jones exercised
unconstitutionally excessive force when he shot Lenning in the eye. Jones asserts
that he is entitled to qualified immunity.
A. Qualified Immunity Principles
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if 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) (quotation
marks omitted). To receive qualified immunity, the government official “must first
2
We review de novo a district court’s summary judgment decision, applying the same
legal standards as those that governed the district court. Capone v. Aetna Life Ins. Co., 592 F.3d
1189, 1194 (11th Cir. 2010). Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
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prove that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002) (quotation marks omitted).
“Once the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Id. The plaintiff does so by showing that (1) the defendant violated
a constitutional right and (2) that right was clearly established at the time of the
alleged violation. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264
(11th Cir. 2004).
The parties agree that Officer Jones acted within his discretionary authority
on the evening of June 23, 2008. Therefore, plaintiff Lenning must show that
Jones’s conduct violated Lenning’s clearly established Fourth Amendment right to
be free from seizure through excessive force.
B. Excessive Force Principles
“[A]ll claims that law enforcement officers have used excessive force—
deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a
free citizen [are] analyzed under the Fourth Amendment and its ‘reasonableness’
standard . . . .” Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871
(1989) (emphasis omitted). The reasonableness determination requires “a careful
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balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interest against the countervailing governmental interests at stake.”
Jackson v. Sauls, 206 F.3d 1156, 1169-70 (11th Cir. 2000). The reasonableness
inquiry is objective. Id. at 1170.
In its objective-reasonableness inquiry, this Court considers many factors,
including (1) the severity of the crime at issue; (2) whether the suspect posed an
immediate threat to the safety of the officers or others, including the possibility
that the suspect was violent, dangerous, or armed; (3) whether the suspect was
actively resisting arrest or attempting to evade arrest by flight; (4) whether the
police action took place in the context of effecting an arrest; (5) the need for the
application of force; (6) the relationship between the need for force and the amount
of force used; (7) the duration of the action; (8) the number of persons with whom
the police officers must contend at one time; (9) the extent of the injury inflicted;
and (10) whether the force was applied in good faith or maliciously and
sadistically. Id. at 1170 n.18.
“The calculus of reasonableness must embody allowance 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.” Id. at 1170 (quotation marks omitted).
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“Therefore, use of force 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 omitted) (alterations adopted).
C. Application to Lenning’s Case
When Officer Jones’s bullet struck him, plaintiff Lenning was seized within
the meaning of the Constitution. See Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th
Cir. 2003) (“Although [the plaintiff] was not immediately stopped by the bullet
from [the officer’s] gun, he nevertheless was seized within the meaning of the
Fourth Amendment when the bullet struck or contacted him.”). Thus, the question
is whether Officer Jones’s actions were “objectively reasonable” in light of the
particular facts and circumstances confronting him. Jackson, 206 F.3d at 1170
(quotation marks omitted). They were.
Officer Jones knew that Lenning had barricaded himself by arming himself
with many weapons and by threatening to use explosives. Jones also observed
Lenning wave his long-barreled gun at several officers, heard Lenning yell that he
would shoot the officers, and witnessed Lenning repeatedly refuse to surrender his
gun. After all of this, Jones observed Lenning commit a life-threatening offense:
aiming his long-barreled gun at Jones, positioning himself on the car’s hood to take
the shot, and shouting, “I’m going to shoot you. I’m going to kill you.”
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Jones’s use of deadly force in response to Lenning’s aggressive and life-
threatening conduct was objectively reasonable. Lenning’s conduct—aiming his
gun at Jones, positioning himself to shoot, and stating that he would shoot and
kill—created an immediate threat to Jones’s safety. See Jackson, 206 F.3d at 1170
(noting that this Court considers the severity of the crime at issue and whether the
suspect’s actions pose an immediate threat to the safety of an officer when
evaluating the objective reasonableness of a seizure). And, that conduct occurred
after Lenning escaped an earlier attempt at arrest and after a long standoff with
several police officers. See id. (stating that resisting arrest and flight are relevant
considerations).
And, given Lenning’s position—lying prone across the hood of a car—Jones
had only one target: Lenning’s head. Moreover, given his distance from Lenning
(more than 50 feet), Jones could not deploy his Taser (which had a 25-foot range).
Thus, there was no less-deadly alternative at Jones’s disposal in the brief moment
he had to react to save his own life. See id. (stating that the need for force, the
amount of force, and the extent of the injury are relevant factors).
These facts support the conclusion that Jones took objectively reasonable
action in the split-second between Lenning’s threat of deadly force and Jones’s
responsive shot. Because Jones did not violate Lenning’s Fourth Amendment right
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in taking that shot, the district court did not error in concluding that Lenning was
entitled to qualified immunity as to Lenning’s excessive force claim. 3
III. NEGLIGENCE CLAIM UNDER STATE LAW
Lenning also alleges that Officer Jones acted negligently in responding to
the June 23, 2008 incident. Jones states that he is entitled to official immunity.
Lenning counters by asserting that Jones is not entitled to official immunity with
respect to the state law negligence claim because Jones acted “intentionally and
with a complete and deliberate indifference to [Lenning’s] rights.” 4
Under Georgia law, a public officer or employee—such as Jones—is entitled
to official immunity unless he performed ministerial acts negligently or performed
discretionary acts “with malice or an intent to injure.” Cameron v. Lang, 549
S.E.2d 341, 344 (Ga. 2001).
3
We reject Lenning’s contention that the district court erred in relying on officers’ reports
in reaching its conclusion. These reports were viable summary judgment evidence that could be
reduced to admissible form at trial. The district court did not err when it considered them.
4
As a more general proposition, Lenning asserts, “The entire incident was handled
poorly.” To the extent that this statement is an attempt to appeal the district court’s grant of
summary judgment as to the negligence claim against defendants other than Jones, Lenning
failed to adequately brief that issue on appeal. Thus, he has abandoned any such claim. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014); see also Walter
Int’l Prods. Inc. v. Salinas, 650 F.3d 1402, 1413 n.7 (11th Cir. 2011) (holding that the appellant
abandoned a claim by making “nothing more than a passing reference” to it in the initial brief);
Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[S]imply stating that an issue
exists, without further argument or discussion, constitutes abandonment of that issue and
precludes our considering the issue on appeal.”).
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As noted above, the parties agree that Officer Jones acted within his
discretionary authority on the evening of June 23, 2008. See Golden v. Vickery,
645 S.E.2d 695, 696 (Ga. Ct. App. 2007) (“A discretionary act calls for the
exercise of personal deliberation and judgment, which in turn entails examining the
facts, reaching reasoned conclusions, and acting on them in a way not specifically
directed.”). Jones cannot be held liable for negligently performing those
discretionary actions. See Gilbert v. Richardson, 452 S.E.2d 476, 482-83 (Ga.
1994) (“According to the plain language of [the 1991 amendment to Article I,
section II, paragraph IX(d) of the Georgia Constitution], state officers and
employees . . . are subject to suit only when they negligently perform or fail to
perform their ‘ministerial functions . . . .’ ” (emphasis added)).
Jones could, however, be held liable for performing his discretionary actions
“with malice or an intent to injure.” But, Lenning did not allege any such state law
claim in his complaint. Lenning only alleged a state law negligence claim.
Because Jones’s actions on June 23, 2008 were discretionary and not
ministerial, Lenning’s state law negligence claim fails as a matter of law. Thus,
the district court did not err in finding that Jones was entitled to official immunity
from Lenning’s state law negligence claim.
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IV. CONCLUSION
The district court’s grant of summary judgment in favor of the defendants is
affirmed. 5
AFFIRMED.
5
Lenning does not appeal the district court’s grant of summary judgment in favor of the
defendants on Lenning’s many other claims. Thus, he has abandoned those claims on appeal.
See Sapuppo, 739 F.3d at 680-81 (stating that a party abandons otherwise appealable issues
when it fails to list issues in the statement of the issues presented on appeal or fails to adequately
address such issues in the remainder of the opening brief).
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