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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11695
________________________
D.C. Docket No. 3:16-cv-00855-CDL-DAB
MARY LEE DAVIS,
as administrator of the Estate of Fletcher Ray Stewart, deceased,
Plaintiff - Appellant,
versus
BRYAN EDWARDS,
JIMMY ABBETT,
Sheriff of Tallapoosa County, Alabama,
DAVID McMICHAEL,
Chief Deputy,
WILLIAM J. HOUGH,
Training Officer,
TALLAPOOSA COUNTY, ALABAMA, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 14, 2019)
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Before ROSENBAUM, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
This is an appeal of the district court’s order granting summary judgment in
favor of Deputy Bryan Edwards of the Tallapoosa County, Alabama, Sheriff’s
Office and Officers Rico Hardnett and Christopher Fenn of the City of Dadeville
Police Department (collectively, “the officers”).1
The district court referred the summary judgment motion to a magistrate
judge pursuant to 28 U.S.C. § 636 et seq. The magistrate judge recommended that
Hardnett and Fenn’s motion be granted but that Edwards’s motion be denied.
Edwards objected to the denial of his motion for summary judgment, and the
district court reviewed his objections de novo. The district court then adopted the
magistrate judge’s recommendation that Hardnett and Fenn’s motion for summary
judgment be granted but rejected the magistrate judge’s recommendation that
Edwards’s motion for summary judgment be denied. The district court then
entered summary judgment in favor of all three defendants as to all claims of
Plaintiff Mary Lee Davis, as administrator of the Estate of Fletcher Ray Stewart,
deceased. Davis then perfected this appeal.
1
The amended complaint included additional defendants, including Tallapoosa County,
the City of Dadeville, and other individual defendants. The district court dismissed those
defendants, and no party appealed that order. Thus, the three officers listed above were the only
remaining defendants when the case proceeded to summary judgment.
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I. BACKGROUND FACTS
This is a tragic case surrounding events which occurred near Dadeville,
Alabama, on February 11, 2015, during which the officers were involved in the
shooting death of local citizen Fletcher Ray Stewart (“Stewart”). Stewart was a
46-year-old lifelong resident of rural Tallapoosa County, Alabama. Stewart
suffered from mild mental retardation and was known by both the residents of
Dadeville and the members of local law enforcement.
On February 11, 2015, Stewart’s nephew, Benny Welch, called 911 to report
his uncle was wandering on the road “rasing [sic] all kind of Cain, and he’s got a
pistol in his pocket. . . . He showed it – you know, pulled it out when he walked
by.” (R. Doc. 109-9, p. 3.) The 911 operator dispatched Deputy Edwards, telling
Edwards that Stewart was “walking up and down [Booger Hollow Road] hollering,
[and] he has got a pistol that he is waving around.” (R. Doc. 109-10, p. 2.)
Edwards responded to the call and requested any available backup. Officers
Hardnett and Fenn also responded to the call.
Edwards had encountered Stewart numerous times when responding to
incidents in which Stewart was involved. During these encounters, Edwards had
been able to diffuse any problem by merely talking to Stewart, or by giving him
snacks or small change. However, on occasion, Edwards also had responded to
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calls alleging violence by Stewart. In responding to these calls, Edwards had seen
Stewart attack and threaten others, including police officers, with weapons such as
a taser, bicycle chain, and large rock. (R. Doc. 164–1, p. 18–25.) In addition, the
record shows that Edwards responded to a call that Stewart assaulted his own
mother. (Id. at p. 18–20.) Edwards also knew that Stewart had at various prior
times been in possession of a knife and brass knuckles. (Id. at p. 23, 25.) On this
fatal day, as Edwards drove toward Stewart in response to the 911 call, Stewart ran
into the woods. Edwards chased Stewart and commanded him to stop, which
eventually he did. At that point, the other two officers had arrived at the scene
with their guns drawn. Edwards shouted commands to Stewart, alternating
between ordering him to keep his hands up and asking him where he had placed
the gun. Instead of following either of Edwards’s commands, Stewart moved his
hands toward his back waistband, and Edwards opened fire. Two rounds struck
Stewart, killing him. Importantly, the entire encounter was captured by Edwards’s
body camera, the footage of which is included as part of the record. See Def. Exh.
129, at 5. The parties, not surprisingly, dispute whether Edwards fired before or
after Stewart removed his hand from his back waistband, apparently drawing his
weapon.
We viewed the video several times, in slow motion, and we are unable to
determine, conclusively, whether Edwards opened fire before or after Stewart
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appeared to draw his weapon. What the video does show conclusively is that
Edwards opens fire within a second of his bodycam capturing a frame that depicts
Stewart holding a pistol-shaped object in his right hand (R. Doc. 109–17, p. 2.)
Hardnett saw a pistol fly from Stewart’s hands after the shooting started, but
neither he nor Fenn saw a gun in Stewart’s hands before the shooting. After the
shooting, the officers discovered that Stewart had been holding a BB gun that
resembled a real pistol. For purposes of the officers’ motion for summary
judgment, the district court assumed that Edwards did not see a gun before he fired
his weapon the first time.
II. ISSUES
Davis alleges that the officers violated Stewart’s Fourth Amendment rights
by (1) conducting an unlawful investigatory stop under Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868 (1968); (2) unlawfully seizing Stewart prior to the shooting and at
the time of the shooting; and (3) using excessive force against Stewart when
Edwards shot him. The question before us is whether the district court properly
granted qualified immunity to the officers on the pre-shooting seizure claims and
on the excessive use of force claim. 2
2
In her brief, Davis also argues that the district court improperly construed evidence and
inferences in the officers’ favor when deciding the summary judgment motion. Because there is
nothing in the record to support that argument, we summarily reject it without further discussion.
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III. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment. Smith v.
LePage, 834 F.3d 1285, 1291 (11th Cir. 2016). “Summary judgment is appropriate
only if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quoting Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)). If that standard is met, the burden
shifts to the nonmoving party to “come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (quotation marks omitted).
To prevent summary judgment, a factual dispute must be both material and
genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505,
2510 (1986). A fact is “material” if it “might affect the outcome” of the case.
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (quotation
marks omitted). And to raise a “genuine” dispute, the nonmoving party must point
to enough evidence that “a reasonable jury could return a verdict for [her].” Id.
(quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510).
When considering the record on summary judgment “the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in [her]
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favor.” Tolan v. Cotton, 572 U.S. 650, 651, 134 S. Ct. 1861, 1863 (2014). But in
cases where a videotape in evidence “obviously contradicts [the nonmovant’s]
version of the facts, we accept the video’s depiction instead of [the nonmovant’s]
account,” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010),
and “view[] the facts in the light depicted by the videotape,” Scott v. Harris, 550
U. S. 372, 381, 127 S. Ct. 1769, 1776 (2007).
IV. DISCUSSION
Qualified immunity protects officers engaged in discretionary functions
from civil liability only if the officers’ actions do not “violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Here, no
one disputes that the officers were exercising discretionary authority at the time of
the alleged constitutional violations; thus, qualified immunity could attach to their
actions. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005)
(defendant officers were apprehending suicidal subject and were clearly engaged in
a discretionary act); Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (no
dispute that officer was engaged in discretionary duty while arresting plaintiff).
Therefore, to prevail on her claim, the plaintiff must establish that the officers are
not entitled to qualified immunity because the facts alleged demonstrate a violation
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of Stewart’s constitutional right that was clearly established at the time of
Edwards’s conduct. See Mercado, 407 F.3d at 1156.
We conduct a two-part inquiry to assess whether the plaintiff met this
burden. First, we consider whether, taken in the light most favorable to the
plaintiff, the facts alleged show the officers’ conduct violated a constitutional right.
See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Then, “[i]f a
constitutional right would have been violated under the plaintiff’s version of the
facts, the court must then determine whether the right was clearly established.” Id.
(quotation marks omitted).
A. Pre-Shooting Seizure Claims
“[L]aw enforcement officers may seize a suspect for a brief, investigatory
Terry stop where (1) the officers have a reasonable suspicion that the suspect was
involved in, or is about to be involved in, criminal activity, and (2) the stop ‘was
reasonably related in scope to the circumstances which justified the interference in
the first place.’” United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011)
(quoting Terry, 392 U.S. at 19–20, 88 S. Ct. at 1878–79). The reasonable
suspicion standard “is a less demanding standard than probable cause and requires
a showing considerably less than preponderance of the evidence.” Id. (quoting
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 676 (2000)). Nonetheless,
“the Fourth Amendment requires at least a minimal level of objective justification
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for making [a] stop.” Id. (quoting Wardlow, 528 U.S. at 123, 120 S. Ct. at 676).
We consider the totality of the circumstances when determining whether
reasonable suspicion existed and note that “[d]efensive behavior toward police is a
relevant factor in this inquiry.” Id. at 1186–87. When an officer asserts the
defense of qualified immunity to a claim of an unconstitutional investigatory stop,
“the issue is not whether reasonable suspicion existed in fact, but whether the
officer had ‘arguable’ reasonable suspicion to support an investigatory stop.”
Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). Thus, the relevant inquiry
is whether the officers’ seizure of Stewart prior to the shooting was supported by
“arguable reasonable suspicion.” Id. We agree with the district court that it was.
The record demonstrates that Deputy Edwards knew that Stewart engaged in
aberrant behavior and that he knew Stewart was waving a gun on a public
roadway. When Stewart saw Edwards approaching, Stewart ran into the woods on
to someone else’s property. Under the totality of the circumstances, Edwards had
an arguable reasonable basis to suspect Stewart was engaged in criminal activity
and posed a threat to any individuals in the vicinity. These circumstances
authorized him to stop and question Stewart. Therefore, we agree with the district
court’s finding that Edwards is entitled to qualified immunity on Davis’s pre-
shooting seizure claims. Additionally, we conclude that Officers Hardnett and
Fenn, who were simply providing backup for Deputy Edwards and were not
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personally involved in the initial stop, are also entitled to qualified immunity on
these claims.
B. Excessive Force Claim
This claim presents a much closer question. The district court assumed for
purposes of its summary judgment order that Edwards did not actually see Stewart
holding a gun prior to discharging his weapon. This fact alone, however, is not
dispositive of the claim. The record in this case demonstrates that Edwards knew
Stewart to be mentally unbalanced, was reported to be armed, and was behaving in
an erratic and potentially dangerous manner. The record also clearly demonstrates
that upon seeing Edwards, Stewart fled. When Stewart stopped running, Edwards
did not see a gun. Thus, Edwards reasonably could have concluded that the gun
was concealed on Stewart’s person.
The record also demonstrates that when Edwards ordered Stewart to show
his hands and turn around, Stewart did not comply. Further, the videotape shows
that when Edwards asked Stewart where the pistol was, Stewart did not respond;
instead, Stewart reached his right hand behind his back into his waistband. At that
point, Edwards pointed his weapon at Stewart and ordered him to show his hands.
Rather than comply with this order, Stewart kept his right hand behind his back
and refused to show his hands. On this record, where Edwards had significant
personal knowledge of Stewart’s history with violence, as well as of his mental
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unpredictability, we agree with the district court’s finding that at this point,
whether Edwards saw the gun or not, he had probable cause to believe that Stewart
posed a danger to himself and to the officers on the scene.
The relevant inquiry is whether it would have been clear to a reasonable
officer that shooting Stewart under these circumstances would have been a
violation of his Fourth Amendment right. Edwards was in a precarious position
that necessitated an immediate decision. He was not required to wait any longer
before using deadly force. See Shaw v. City of Selma, 884 F.3d 1093, 1100 (11th
Cir. 2018) (explaining that under clearly established law, when a suspect does not
comply with an officer’s commands, the officer is not required to wait until the
moment a suspect uses deadly force to stop the suspect); Jean-Baptiste v.
Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“[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.” (quoting Long v. Slaton, 508 F.3d 576, 581
(11th Cir. 2007))); Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009)
(“[W]here orders to drop [a] weapon have gone unheeded, an officer is not
required to wait until an armed and dangerous felon has drawn a bead on the
officer or others before using deadly force.” (quotation marks omitted)).
Notwithstanding the tragic nature of the shooting, we conclude that it would
not have been clear to a reasonable officer that the shooting was unreasonable
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under the circumstances. Edwards had to act quickly to subdue an unstable and
potentially dangerous suspect. We do not view his actions with “the 20/20 vision
of hindsight.” Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (quotation
marks omitted). Thus, because we conclude from the record that Edwards’s
conduct did not violate Stewart’s clearly established constitutional rights, Edwards
is entitled to qualified immunity on plaintiff’s Fourth Amendment excessive force
claim. Moreover, Hardnett and Fenn, who issued no commands and fired no shots,
are likewise entitled to qualified immunity on this claim.
V. CONCLUSION
This is indeed a tragic case, not only for the deceased and his family, but
also for Deputy Edwards and the other officers involved. Nevertheless, based on
the record, particularly the bodycam video, and based on the law of qualified
immunity, we affirm the district court’s grant of summary judgment to the officers.
AFFIRMED.
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