Garczynski v. Bradshaw

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 7, 2009
No. 08-16100 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 06-80943-CV-KAM

JOHN GARCZYNSKI,
the Estate of,

Plaintiff-Appellant,

versus

SHERIFF RIC L. BRADSHAW,
(PBSO) Officially,
DEPUTY ROD WITHROW,
(PBSO) Individually,
DEPUTY DANA MACLEOD,
(PBSO) Individually,
DEPUTY SHAWN GODDARD,
(PBSO) Individually,
OFFICER ROBERT ADAMS,
(BRPD), et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2009)
Before DUBINA, Chief Judge, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

This case involves the use of deadly force by police officers responding to a

911 call of a suicidal, armed man named John Garczynski (“Garczynski”). The

Estate of Garczynski (“the Estate”) sued Sheriff Ric Bradshaw of the Palm Beach

County Sheriff’s Office (“PBSO”) in his official capacity and several police

officers in their individual capacities for violations of Garczynski’s Fourth and

Fourteenth Amendment rights under 42 U.S.C. § 1983 (Counts I-VII), assault and

battery, (Count VIII), and negligence (Count IX).1 The district court granted

summary judgment in favor of the police officers and dismissed the state law

claims (Counts VIII-IX) without prejudice. After careful review of the entire

record, including oral argument, we AFFIRM.

I. BACKGROUND

The night of 9 March 2005 was cold, rainy, and windy. About 9:40 P.M.,

Deputy Jonathan Wildove of the PBSO received notice of a suicidal subject.

Deputy Wildove drove to the residence of the subject’s estranged wife, Leigh

Garczynski (“Leigh”). Leigh showed Deputy Wildove several documents

1
One of the named defendants, Officer Robert Adams of the Boca Raton Police
Department, was voluntarily dismissed from this action.

2
Garczynski had given her that night. Among the papers were Garczynski’s last

will and testament, an obituary listing Garczynski’s date of death as 9 March 2005,

a journal containing numerous references to Garczynski’s intent to kill himself on

that same date, a letter to Leigh expressing his love for her, and a recent e-mail in

which Garczynski advised Leigh that the divorce papers were ready and in which

he apologized for “everything in the past, present, and future.” R2-84, Exh. 54 at

10-11.

Garczynski had handed Leigh the documents in a large envelope earlier that

evening after a bowling league outing, instructing her not to open it “until

something happens.” R2-84, Exh. 53 at 32 (“Leigh Deposition”). He had then

driven off in his Ford Explorer sport utility vehicle. Despite having separated

several months earlier, Leigh and Garczynski remained friendly and regularly

bowled together. That night, however, Leigh had returned Garczynski’s wedding

band to him at his request. She had expected the packet to contain divorce papers

and opened the envelope immediately. Concerned by its contents, Leigh called

Garczynski on his cell phone. Both began crying. Garczynski refused to disclose

his whereabouts or meet with Leigh. He said he had a gun and planned to kill

himself. Leigh believed Garczynski was serious. Leigh also initially feared for her

own safety based on a statement in Garczynski’s will contemplating what should

3
happen if she died before her husband did. Upon returning to her parents’ house

where she was living, Leigh called 911 for help with suicide prevention.

Sergeant Robert Sandt and Deputy Dana MacLeod of the PBSO also

responded to the dispatch call and met with Deputy Wildove at Leigh’s residence.

Leigh told the officers that Garczynski had never been violent and had served in

the Navy doing administrative work. After reviewing the documents that

Garczynski had provided to Leigh, Sergeant Sandt concluded that Garczynski

intended to kill himself. Since his location was unknown and he was armed, the

officers’ first priority was to find him. Sergeant Sandt sent police to Garczynski’s

residence in West Palm Beach and Deputy Wildove notified Garczynski’s best

friend. As a safety precaution, Deputy Shawn Goddard of the PBSO and another

officer patrolled Leigh’s neighborhood.

Sometime after Deputy Wildove’s arrival, Garczynski called Leigh on her

cell phone. Leigh moved to the front porch where she remained on the phone with

Garczynski for several hours. Sergeant Sandt instructed Deputy Wildove to

monitor the conversation and ferret out Garczynski’s whereabouts. Sergeant Sandt

also made clear that Garczynski should not know the police were involved. At that

point, Leigh’s phone conversation was the officers’ sole avenue for locating

Garczynski and Sergeant Sandt did not want to risk losing contact with him. For

4
the same reason, Sergeant Sandt planned to call in a crisis intervention specialist

after Garczynski had been found and the scene was secure.

In the beginning of the conversation, Garczynski told Leigh he had a

constant stomachache and was upset about their relationship. They eventually

moved on to discussions about bowling, cooking, Garczynski’s two children from

a previous marriage, and “working on getting back together.” Leigh Deposition at

95. The tone of the conversation became calm. Although Deputy Wildove was

aware of the conversation’s topics and tone, he did not convey this information to

Sergeant Sandt, who was coordinating the search effort from inside Leigh’s house.

Deputy Wildove considered these factors secondary to ascertaining Garczynski’s

location. Nor did Sergeant Sandt expect Deputy Wildove to relate to him the

topics or tone of the conversation. Based on his fourteen years of experience in

handling hundreds of suicide attempts, Sergeant Sandt believed that

communication of every demeanor or mood change was impractical.

Leigh asked Garczynski several times where he was but Garczynski at first

refused to say. She guessed he was somewhere outside judging from the

background sounds of wind and rain. Towards the middle of the conversation,

Garczynski said he was at the beach and that she would know which one. Leigh

assumed that he was referring to the beach near Spanish River Boulevard where

5
they had spent their second date.

Meanwhile, the cell phone company had been attempting to triangulate

Garczynski’s position. Using that information, Deputy Goddard searched the

Spanish River Boulevard for Garczynski. Deputy Rob-Roy Withrow of the PBSO,

who was familiar with the area, voluntarily assisted in the search. At one point,

they spotted a man talking on a cell phone while walking along the boulevard.

They did not approach him, however. Shortly thereafter, Deputy Withrow

discovered Garczynski’s vehicle parked in a lot at the Boca House apartment

complex on Spanish River Boulevard. The vehicle had been backed into a hedge

with the front facing the parking lot. The lot’s single lamp provided little

illumination. The poor weather conditions also made it difficult to see inside the

car. The windows were fogged and tinted in back and on the side. Although

Deputy Withrow came very close to the vehicle, he was unable to tell if anyone

was inside.

Sergeant Sandt implemented several precautionary measures to contain the

environment and provide optimal safety for everyone involved. The Boca Raton

Police Department set up a perimeter around the area; fire department paramedics

staged at a nearby drugstore; officers deployed stop sticks, designed to deflate a

car’s tires, at the parking lot’s single exit; and a ballistic shield was ordered. The

6
Broward Sheriff’s Office and the PBSO attempted to provide helicopters but the

wind and rain prevented take-off. Officer Robert Adams from the Boca Raton

Police Department also arrived with his dog to assist in the search for Garczynski.

By 1:00 A.M., five officers were at the Boca House parking lot where

Garczynski’s car was located: Lieutenant Jay Hart from the PBSO, Deputy

Withrow, Deputy Goddard, Deputy MacLeod, and Officer Adams. Sergeant

Sandt, who was still at Leigh’s house, had relinquished tactical command to

Lieutenant Hart upon his arrival at Boca House but the two conferred as to the best

course of action. Sergeant Sandt suggested that four officers make a “dynamic

approach” using a ballistic shield to determine whether Garczynski was in his car.

R2-84, Exh. 13 at 32-33 (“Hart Deposition”). In Sergeant Sandt’s experience, this

strategy effectively alleviates violence by overwhelming the situation before an

individual can calculate a counter plan.

While this approach was being formulated, Deputy Wildove told Leigh to

talk Garczynski into returning to his car. Consequently, Leigh suggested to

Garczynski that he warm himself up by getting in his car. Based on information

from Deputy Wildove, Sergeant Sandt informed the officers at the Boca House at

1:08 A.M. that Garczynski was walking to his car. Leigh heard the sound over the

phone of the seatbelt reminder after Garczynski entered his car. At 1:09 A.M.,

7
Deputy MacLeod saw the dome light turn on and reported that Garczynski was in

the vehicle. Deputy Wildove then directed Leigh to have Garczynski start the

engine.2 None of the officers at Boca House knew that Garczynski had been

instructed to go to his vehicle or start the engine.

After Garczynski’s vehicle started, Lieutenant Hart advised the officers at

1:10 A.M., “Do not let him leave, guys.” Hart Deposition at 42. Lieutenant Hart

knew stop sticks had been deployed but believed Garczynski could have avoided

them by driving around the exit. Even if Garczynski’s tires had been deflated by

the stop sticks, his car was still capable of being driven for some distance. In any

event, Lieutenant Hart did not want to risk a “running gun battle” with an armed

man who was potentially suicidal. Hart Deposition at 31.

Over the phone, Leigh thought she heard a voice shout, “Police!” Leigh

Deposition at 69. Garczynski said in a surprised voice, “Oh you called the – You

called the cops on me?” Id. at 68-69. Leigh also heard John say, “No, never.” Id.

at 70. At that point, Leigh handed her phone to Deputy Wildove. Deputy Wildove

heard Garczynski say in a “mad” tone, “Don’t come in here, don’t come in here.”

R2-84, Exh. 37 at 49, 59-60 (“Wildove Deposition”). Deputy Wildove then heard

2
We note that Deputy Wildove denied instructing Leigh to tell Garczynski to go to his
car or to start the engine. As did the district court, we credit Leigh’s testimony on these factual
disputes.

8
police officers shouting commands, some banging noises, and finally gunfire. Id.

at 49.

The four officers who approached the vehicle testified as follows about the

sequence of events. Upon hearing the engine start and Lieutenant Hart’s command

not to let the vehicle leave, the officers abandoned their plan to wait for the

ballistic shield. Deputy MacLeod and Officer Adams approached the front of the

vehicle. The front windshield wipers came on. Both officers saw Garczynski

holding a cell phone to his face with his left hand. They identified themselves as

police officers and shouted repeatedly, “Show me your hands, show me your

hands, put the phone down, show me your hands.” R2-84, Exh. 21 at 42

(“MacLeod Deposition”). Garczynski did not comply, keeping his right hand

hidden and leaning forwards.

Meanwhile, Deputy Withrow and Deputy Goddard had approached

Garczynski’s vehicle from the rear. Deputy Withrow could not see inside the car

because the windows were fogged. He was unable to open the passenger door.

Deputy Withrow then used his flashlight to smash out the front passenger window.

It took several hits before he succeeded. The other officers continued to shout

commands to Garczynski to show his hands and get out of the vehicle. Within

seconds, Deputy Withrow also shattered the back passenger window.

9
 At some point, Officer Adams, Deputy MacLeod, and Deputy Goddard saw

Garczynski raise a gun in his right hand to his temple. Deputy MacLeod shouted,

“Gun, gun, gun.” R2-84, Exh. 5 at 45 (“Goddard Deposition”). The officers

repeatedly ordered Garczynski to drop his gun. Upon breaking the second

window, Deputy Withrow pointed his gun at the vehicle and shouted, “Put the gun

down. Put the gun down.” R2-84, Exh. 45 at 59 (“Withrow Deposition”).

According to Officer Adams, Garczynski then “took the weapon from his head and

pointed it at Deputy Withrow.” R2-84, Exh. 2 at 40 (“Adams Deposition”).

Officer Adams explained that “in the process of pointing it at Officer Withrow he

also pointed it at myself and Deputy MacLeod.” Id. at 57. Officer Adams then

shot at Garczynski. Deputy MacLeod simultaneously saw the gun move from

Garczynski’s head and “come across and come out the window.” MacLeod

Deposition at 47. Deputy MacLeod heard Officer Adams fire his gun and began

shooting as well.

Deputy Withrow testified that after breaking the second window, he saw

Garczynski holding a cell phone in his left hand and pointing a gun at his head

with his right hand. Deputy Withrow ordered Garczynski to “Put the gun down,

put the gun down.” Withrow Deposition at 59. Instead, Garczynski turned and

looked at him. Garczynski “then extended his arm straight in front of him and out

10
and around and did it in a swinging motion and pointed it at me.” Id. Deputy

Withrow recalled the following:

[M]y thought process at the time was as he was swinging his weapon
around, that he was shooting at the officers to my right. That’s when I
began to shoot. As muzzle flashes were going off, I was shooting.
And what I recall, and what I remember, which was explicit in my
mind at the time, was that he didn’t stop; he kept coming, he kept
swinging around on me as the muzzle shots were going off and as I
was firing.

Id. at 66. Deputy Withrow shot at Garczynski in order to “stop the threat towards

the other officers and myself.” Id. at 70. As he fired, Deputy Withrow stepped

back and bumped into a protruding tire of another car, whereupon he fell to the

ground.

Deputy Goddard, who was standing behind Deputy Withrow when the

shooting began, thought Deputy Withrow had been shot when he fell down.

Specifically, Deputy Goddard testified as follows:

The best of my recollection was Mr. Garczynski brought the gun from
his temple, swung around to the position of the deputies in front and
the gun come around to my position. Shots were being fired. Deputy
Withrow was still here. I couldn’t take any action because I had
Deputy Withrow in my line of fire. I was merely cover; I couldn’t do
anything. After the shots were fired, Deputy Withrow fell back. I
believed him to be shot. The gun was still in my direction. I believed
I was going to be shot next.

Goddard Deposition at 48. Deputy Goddard “fired to stop him from shooting me.”

Id. at 50. The shooting was over within seconds. Deputy MacLeod called the

11
paramedics at 1:12 A.M.

Less than two minutes elapsed between the time Garczynski started his

engine and the time he was fatally wounded by the officers. The officers fired

thirty bullets, ten of which hit Garczynski. Garczynski’s gun, a nine-millimeter

semi-automatic pistol, lay on the front passenger seat. The gun was in working

order and loaded with one round in the firing chamber and two rounds in the

magazine. The gun had not been fired, and neither the hammer nor slide of the gun

appeared to have been locked back.

The PBSO has officers specifically trained in handling suicidal individuals.

At the time of the incident, Sergeant Sandt, Deputy Wildove and Officer Adams

had been trained in suicide prevention. Lieutenant Hart had received some

instruction at the police academy pertaining to suicide attempts. Deputies

MacLeod and Withrow also had training at the academy dealing with mentally

distressed individuals. In particular, Deputy Withrow had extensive experience

with suicide attempts and received a number of commendations for his handling of

them. All of the aforementioned law enforcement agents were seasoned police

officers, ranging in experience from seven to twenty years.

The Estate brought a civil suit seeking monetary damages in excess of ten

million dollars. The district court granted summary judgment as to the Estate’s

12
§ 1983 claims of excessive and deadly force on grounds that the officers were

entitled to qualified immunity. The court first concluded that Sergeant Sandt and

Deputy Wildove did not violate Garczynski’s constitutional rights by failing to

convey to the Boca House officers that Garczynski was calm and started his car at

his wife’s instruction. Additionally, the court determined that the style and timing

of the dynamic approach by Deputies Withrow, MacLeod, and Goddard did not

violate Garczynski’s constitutional rights. Next, the district court concluded that

the officers’ use of deadly force was objectively reasonable under the

circumstances because “the officers faced an imminent threat of danger when

Garczynski failed to drop the gun as he was commanded to do and pointed it at

them.” R4-152 at 21. The district court found no competent evidence to raise a

genuine issue of material fact regarding the officers’ version of events immediately

preceding the shooting. Because Garczynski’s constitutional rights were not

violated, the district court held that the Estate’s § 1983 claims of deliberate

indifference against Sheriff Bradshaw, acting in his official capacity, necessarily

failed. Finally, the district court dismissed without prejudice the Estate’s

remaining state law claims of assault, battery, and negligence so that the Estate

could pursue them in state court if it chose.

The Estate now appeals the grant of summary judgment as to its § 1983

13
claims of excessive force and deliberate indifference.

II. DISCUSSION

We review de novo the district court’s grant of summary judgment. Lewis

v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009). At the

summary judgment stage, we must determine the relevant set of facts and draw all

inferences in favor of the opposing party “to the extent supportable by the record.”

Scott v. Harris, 550 U.S. 372, 381 n.8, 127 S. Ct. 1769, 1776 n.8 (2007). The

requirement to view the facts in the nonmoving party’s favor extends only to

“genuine” disputes over material facts. Id. at 380, 127 S. Ct. at 1777 (quoting

Federal Rule Civil Procedure 56(c)). A genuine dispute requires more than “some

metaphysical doubt as to the material facts.” Id. at 380, 127 S. Ct. at 1776

(quotation marks and citation omitted). A “mere scintilla” of evidence is

insufficient; the non-moving party must produce substantial evidence in order to

defeat a motion for summary judgment. Kesinger v. Herrington, 381 F.3d 1243,

1249-50 (11th Cir. 2004). Furthermore, summary judgment is appropriate even if

“some alleged factual dispute” between the parties remains, so long as there is “no

genuine issue of material fact.” Scott, 550 U.S. at 380, 127 S. Ct. at 1776

(quotation marks and citation omitted).

Section 1983 enables a citizen to sue any person acting under color of state

14
law who violates his or her federal constitutional rights. See Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 120, 112 S. Ct. 1061, 1066 (1992). The threat

of litigation may stymie a police officer’s ability to perform his duties effectively,

however. To address this concern, qualified immunity protects a police officer

from liability under § 1983 if he was acting within his discretionary authority and

his conduct did not violate “clearly established statutory or constitutional rights of

which a reasonable person would have known.” Lewis, 561 F.3d at 1291

(quotation marks and citation omitted).

There is no dispute that the officers acted in a discretionary capacity when

they attempted to secure Garczynski, who was an armed and potentially suicidal

individual. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005).

The burden then shifted to the Estate to show that qualified immunity should not

apply because: (1) the officers violated a constitutional right, and (2) that right was

clearly established at the time of the incident. See id. The order in which we

address these two issues depends on the particular circumstances of each case. See

Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 818 (2009). We will follow the

traditional approach here by first analyzing whether the officers violated

Garczynski’s constitutional rights. Because we conclude that no constitutional

violation occurred, we need not reach the second prong. See Case v. Eslinger, 555

15
F.3d 1317, 1328 (11th Cir. 2009).

A. Excessive and Deadly Force

The Estate claims that the officers used excessive and deadly force in

violation of Garczynski’s Fourth Amendment right to be free from an unreasonable

seizure. Any claim that a law enforcement officer used excessive force – whether

deadly or not – during a seizure of a free citizen must be analyzed under the Fourth

Amendment’s “reasonableness” standard. Graham v. M.S. Connor, 490 U.S. 386,

395, 109 S. Ct. 1865, 1871 (1989) (quotation marks omitted). This standard

requires balancing the nature of the Fourth Amendment violation against the

government’s interests. See id. at 396, 109 S. Ct. at 1871. The government’s

interests include protecting the safety of the police officers involved as well as the

public at large. See Mercado, 407 F.3d at 1157; Kesinger, 381 F.3d at 1249-50

(finding no constitutional violation where a police officer fatally shot a suicidal

man who posed an immediate threat of harm to the officer and other motorists on a

busy highway); see also McCormick v. City of Fort Lauderdale, 333 F.3d 1234,

1246 (11th Cir. 2003) (per curiam) (explaining that the Constitution permits deadly

force “against a suspect who poses not merely an escape risk (because he is not yet

in police control), but also an imminent threat of danger to a police officer or

others”).

16
 The Supreme Court has emphasized that there is no precise test or “magical

on/off switch” to determine when an officer is justified in using excessive or

deadly force. Scott, 550 U.S. at 382, 127 S. Ct. at 1777; see also Graham, 490 U.S.

at 396, 109 S. Ct. at 1872. Nor must every situation satisfy certain preconditions

before deadly force can be used. See Scott, 550 U.S. at 382, 127 S. Ct. at 1777.

Rather, the particular facts of each case must be analyzed to determine whether the

force used was justified under the totality of the circumstances. See Graham, 490

U.S. at 396, 109 S. Ct. at 187. “[I]n the end we must still slosh our way through

the factbound morass of ‘reasonableness.’” Scott, 550 U.S. at 383, 127 S. Ct. at

1778.

The only perspective that counts is that of a reasonable officer on the scene

at the time the events unfolded. See Graham, 490 U.S. at 396, 109 S. Ct. at 1872.

Accordingly, “the ‘reasonableness’ inquiry in an excessive force case is an

objective one: the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.” Id. at 397, 109 S. Ct. at 1872.

Those facts and circumstances are often “tense, uncertain and rapidly evolving,”

thereby requiring “split-second judgments” as to how much force is necessary. Id.

Because an officer’s perspective in the field differs from that of a judge sitting

17
peacefully in chambers, we must resist the temptation to judge an officer’s actions

“with the 20/20 vision of hindsight.” Id. at 396, 109 S. Ct. at 1872.

Furthermore, an officer need only have arguable probable cause, not actual

probable cause, in order to qualify for immunity from a Fourth Amendment claim.

See Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Regardless of whether

probable cause actually existed, an officer is entitled to immunity if he “reasonably

could have believed that probable cause existed, in light of the information the

officer possessed.” Id. Qualified immunity thereby protects officers who

“reasonably but mistakenly conclude that probable cause is present.” Id.

(quotation marks and citation omitted). “Thus, the qualified immunity standard is

broad enough to cover some mistaken judgment, and it shields from liability all but

the plainly incompetent or those who knowingly violate the law.” Id. (quotation

marks and citation omitted).

The Estate’s central argument is that the officers had no reasonable objective

basis for their dynamic approach and use of deadly force. The Estate emphasizes

that Garczynski had no criminal record, was not breaking any laws, had never been

violent, and had been calmly discussing reconciliation with his estranged wife at

the time the officers confronted him. The Estate suggests that the officers should

have allowed that conversation to continue as long as possible to defuse

18
Garczynski’s suicidal emotions. Additionally, the police could have waited for the

ballistic shield or relied on the stop sticks. Instead, the officers rushed in with their

guns drawn, shouted commands, and bashed in windows. There was no probable

cause for this dynamic approach, according to the Estate, and the use of force was

therefore excessive.

Our task is not to evaluate what the officers could or should have done in

hindsight. The sole inquiry is whether the officer’s actions, as taken, were

objectively reasonable under all the circumstances. In this case, they were. The

situation facing the officers the night of 9 March 2005 was urgent and inherently

dangerous: a man armed with a gun had written his own obituary for that very day

and no one knew where to find him. The officers had only a few hours left before

that day ended. After several hours of futile searching, the officers finally located

his car but could not verify that he was inside. In the midst of planning their

approach, the car engine started. The officers at the Boca House thought

Garczynski was about to leave. Even if these officers mistakenly believed that

Garczynski was about to drive away, it was reasonable for them to attempt to

contain the situation in light of the information they possessed. The officers were

not required to wait and see if Garczynski remained stationary, or rely on the stop

sticks and surrounding police officers to deter him should he suddenly become

19
mobile. “We think the police need not have taken that chance and hoped for the

best.” Scott, 550 U.S. at 385, 127 S. Ct. at 1778 (rejecting argument that the police

should have taken alternative measures to protect the public and prevent injuries to

the individual they were trying to apprehend). Given that Garczynski had a gun

and was not clearly visible, the officers acted reasonably in immediately

approaching the vehicle with their weapons drawn and shattering the vehicle’s side

windows to obtain a better view of him.

Furthermore, the escalation into deadly force was justified by Garczynski’s

refusal to comply with the officers’ commands. After identifying themselves, the

officers repeatedly ordered Garczynski to show his hands. They also repeatedly

commanded him to drop the phone and then, after he raised a gun to his head, to

drop his gun. Instead of obeying these commands, Garczynski swung the gun from

his head in the direction of the officers, at which point they fired. The officers

reasonably reacted to what they perceived as an immediate threat of serious harm

to themselves. This is exactly the type of “tense, uncertain and rapidly evolving”

crisis envisioned by the Supreme Court. Graham, 490 U.S. at 397, 109 S. Ct. at

1872. Judged from the perspective of a reasonable officer on the scene, the

officers’ use of deadly force was objectively reasonable under the circumstances.

The Estate asserts that several issues of material fact exist for a jury to

20
resolve. Chief among these alleged factual disputes is whether Garczynski actually

brandished a gun. The Estate points out that Lieutenant Hart never saw a firearm.

On the other hand, Deputy MacLeod testified that he saw a gun come across and

out the window. The latter would have been physically impossible, argues the

Estate, since Garczynski was sitting in the driver’s seat when he allegedly aimed

his gun at the rear passenger window where Deputy Withrow stood. Finally, the

Estate contends that if Garczynski had indeed pointed his gun at the rear passenger

window, then it would be reasonable to infer that the gun would have dropped in

the rear passenger seat. Instead, the gun was found in the front passenger seat.

These arguments do not raise a genuine issue of material fact. Lieutenant

Hart did not approach the vehicle with the other officers and remained thirty-five

to forty feet away from Garczynski’s car. He testified that he had a clear view only

of the vehicle, not a clear view of anything or anyone inside the vehicle. Due to

the weather, the windows were fogged, which obscured Lieutenant Hart’s ability to

see Garczynski. In contrast, all four of the officers standing near the vehicle

testified they saw Garczynski holding a gun, pointed first to his head and then

towards the officers. Whether the gun actually came out the window or merely

appeared to come out the window from Deputy MacLeod’s perspective does not

negate his testimony (or that of the other three officers) that Garczynski pointed his

21
gun in the officers’ direction. Accordingly, any discrepancies between the

officers’ testimony do not create a genuine issue of material fact. See Kesinger,

381 F.3d at 1249-50 (concluding that summary judgment was appropriate despite

conflicting accounts of a fatal shooting because an eyewitness’s version did not

differ from the officer’s in any material way).

That the gun was found in the front passenger seat likewise does not create a

genuine factual issue as to whether Garczynski pointed his gun at the officers. The

Estate argues that Deputy Withrow’s testimony that Garczynski swung the gun

around to his position at the rear passenger window is inconsistent with the gun

landing in the front passenger seat. However, there was no expert testimony or

other evidence in the record to establish how a person holding a gun would react

after being shot – e.g., whether that person would tighten his grip on the weapon,

fling the weapon, or drop it immediately. According to Officer Adams,

Garczynski had leaned his hand with the gun against the passenger seat, which was

in a slightly reclined position, when he pointed his gun at Deputy Withrow. Even

after shots had been fired and Deputy Withrow had fallen down, Officer Adams

saw Garczynski’s hand remain in the same position with his gun up in the air.

These statements are consistent with Garczynski’s gun falling into either the front

passenger seat or the rear passenger section. Consequently, the gun’s final resting

22
place is not probative of whether or not Garczynski aimed his gun at the officers.

Even if we assumed that Garczynski did not point his gun in the officers’

direction, the fact that Garczynski did not comply with the officers’ repeated

commands to drop his gun justified the use of deadly force under these particular

circumstances. See Montoute, 114 F.3d at 185. In Montoute, a man fired an

illegal weapon (a sawed-off shotgun) while in a crowd of people in a near-riot

situation. Id. He ran past an officer, who repeatedly ordered him to drop the gun,

and never turned to face the officer again or pointed his gun at anyone. Id. at 183.

Nevertheless, we recognized that “there was nothing to prevent him from doing

either, or both, in a split second. At least where orders to drop the 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.” Id. at

185; see also Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) (“Even if we

accept that the threat posed by Long to Deputy Slaton was not immediate in that

the cruiser was not moving toward Slaton when shots were fired, the 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.”). Accordingly, we

concluded that the officer was justified in shooting the fleeing suspect because the

officer could reasonably believe that the man posed a risk of serious physical

23
injury to the officer and others. See Montoute, 114 F.3d at 185.

In contrast to Montoute, Garczynski had not yet fired his gun and was not

attempting to escape. As in Montoute, however, the officers did not have control

over Garczynski and there was nothing to prevent him from shooting at the officers

in an instant.3 The officers could reasonably believe that the weapon was loaded,

as it actually was, given Garczynski’s expressed intent to commit suicide. As in

Montoute, Garczynski repeatedly disobeyed the officers’ orders, first to show his

hands and then to drop his gun. These factors, even assuming that Garczynski

never pointed the gun at the officers, provided a sufficient basis for the officers

reasonably to believe that Garczynski posed an immediate risk of serious harm to

them.

The Estate raises several other alleged factual disputes, none of which

preclude summary judgment. First, the Estate asserts that Deputy Withrow made

conflicting statements as to whether Garczynski knew the police were involved

before their approach. The district court implicitly resolved any such conflict in

favor of the Estate, however, when it found that Garczynski responded in a

surprised voice, “Oh, you called the – you called the cops on me?” R4-152 at 7.

3
The fact that Garczynski was armed with a gun, rather than a knife, distinguishes this
case from Mercado, where we concluded that a suicidal man holding a knife in his hands was not
an immediate threat to officers at the time he was intentionally shot in the head with a Sage
Launcher from a distance of about six feet. See Mercado, 407 F.3d at 1155, 1157-58.

24
In any event, Garczynski’s initial ignorance of police involvement does not

eradicate the threat he posed by his refusal to drop the gun.

Next, the Estate maintains there is a factual dispute as to whether the officers

would have approached Garczynski’s car with their guns drawn had they known

that he was instructed to turn on the vehicle and that he had been calmly exploring

reconciliation with Leigh. The district court again viewed the evidence in the

Estate’s favor. Specifically, the district court found that if the officers on the scene

had known that Garczynski was instructed to start his vehicle, they probably would

not have approached Garczynski at that time. Id. at 13. Similarly, the district court

found that Leigh and Garczynski discussed the “possibility of reconciliation,” and

that if the officers had known Garczynski was speaking calmly with his wife, “that

fact might have given a reason to delay the approach or deal differently with

Garczynski.” Id. at 4, 13. Even with these facts construed in the Estate’s favor,

the district court correctly concluded that the timing and style of the officers’

approach did not violate Garczynski’s constitutional rights.

One final alleged factual dispute is whether Garczynski said anything to the

police officers after they approached. Whereas Deputy MacLeod never heard

Garczynski speak, the Estate points out that Deputy Wildove heard Garczynski

shout, “Don’t come in here, don’t come in here.” Wildove Deposition at 49.

25
According to the Estate, Garczynski’s statement indicates he was not threatening

the officers with violence. No genuine factual dispute exists, however, because the

district court credited Deputy Wildove’s testimony that Garczynski said, “Don’t

come in here.” R4-152 at 7. Moreover, it is Garczynski’s actions after he made

this statement which caused the officers reasonably to believe that he was a serious

risk of harm to them.

The outcome of this situation was undeniably a tragedy. In their efforts to

prevent a suicide, the officers took a life. Yet the record reveals that their use of

force was objectively reasonable considering all the circumstances from a

reasonable officer’s viewpoint. No constitutional violation occurred. Without this

element, we need not assess whether the alleged violation was clearly established.

See Case, 555 F.3d at 1328. Accordingly, the district court correctly afforded the

officers qualified immunity and granted them summary judgment as to the § 1983

claims of excessive and deadly force.

B. Deliberate Indifference

The Estate next asserts a claim against Sheriff Bradshaw, acting in his

official capacity, for deliberate indifference. According to the Estate, the PBSO’s

failure to implement a crisis intervention training program deprived Garczynski of

his Fourth Amendment rights.

26
 “[I]f a city employee violates another’s constitutional rights, the city may be

liable if it had a policy or custom of failing to train its employees and that failure to

train caused the constitutional violation.” Collins, 503 U.S. at 123, 112 S. Ct. at

1068. Section 1983 liability only attaches where “the failure to train amounted to

‘deliberate indifference’ to the rights of persons with whom the police come into

contact.” Id. at 123-24, 112 S. Ct. at 1068. Analysis of a state entity’s custom or

policy is unnecessary, however, when no constitutional violation has occurred.

See Case, 555 F.3d at 1328 (declining to review the sheriff’s and city’s customs

and policies in the absence of a constitutional deprivation by the individual police

officer); see also Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996) (“Since

we have determined that Deputy Watson’s conduct did not cause the Rooneys to

suffer a constitutional deprivation, we need not inquire into Volusia County’s

policy and custom relating to patrol vehicle operation and training.”).

Garczynski failed to show that any of the named individual police officers

deprived him of his constitutional rights by using excessive or deadly force.

Absent a constitutional violation, we need not explore whether PBSO’s policies

regarding crisis intervention training violated Garczynski’s constitutional rights.

See Case, 555 F.3d at 1328; Rooney, 101 F.3d at 1381. Accordingly, we affirm

summary judgment in favor of Sheriff Bradshaw.

27
 III. CONCLUSION

The officers’ use of force in dealing with an armed and potentially suicidal

individual was objectively reasonable in this case. Finding no constitutional

violation, we agree with the district court that the individual officers were entitled

to qualified immunity and summary judgment as to the Estate’s § 1983 claims of

excessive and deadly force. The district court also correctly granted summary

judgment to Sheriff Bradshaw, acting in his official capacity, on the Estate’s

§ 1983 claims of excessive force and deliberate indifference. We therefore

AFFIRM the judgment of the district court.

AFFIRMED.

28