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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12933
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D. C. Docket No. 3:11-cv-00127-HES-MCR
ASHLEY BODDEN,
individually and as Personal Representative
of the Estate of Franklin Raymond Bodden,
Plaintiff-Appellant,
versus
HENRY A. BODDEN,
Intervenor-Plaintiff,
ERNEST COLE,
Deputy, individually,
DAVID BRIGHT, II,
individually,
SHERIFF, NASSAU COUNTY,
in his official capacity as Sheriff of the
Nassau County Sheriff's Office,
KATHERINE BODDEN-GELARO,
Personal Administrative of the Estate
of Franklin R. Bodden (deceased),
a.k.a. Katherine Bodden-Genaro,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 25, 2013)
Before DUBINA, Chief Judge, BLACK and ALARCÓN, * Circuit Judges.
PER CURIAM:
Appellant Ashley Bodden, individually and as the representative of the
estate of Franklin Raymond Bodden (Bodden), appeals the district court’s grant of
summary judgment to Deputy Ernest Cole and Sheriff Thomas Seagraves on her
42 U.S.C. § 1983 civil rights complaint. In Count I of her complaint, Appellant
sued Deputy Cole, alleging that his use of deadly force against Bodden on the night
of September 11, 2010, violated the Fourth Amendment’s prohibition on
unreasonable seizures. In Count II, Appellant pled a cause of action for municipal
liability against Seagraves in his official capacity as the sheriff of Nassau County.
After careful review, we affirm.
I. FACTS
On September 11, 2010, Deputy Cole shot and killed Bodden. Deputy Cole
had received second-hand information from an informant that Bodden would be
travelling through Callahan, Florida, that night with marijuana in his possession.
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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As Deputy Cole was concluding an unrelated traffic stop, he saw Bodden on a
motorcycle. Cole followed Bodden as he turned into a parking lot, and activated
his emergency lights. A dashboard camera in Cole’s car recorded the events of
that night, starting 30 seconds before Cole’s activation of his emergency lights.
After stopping, Deputy Cole checked Bodden’s license, as well as the license of
Bodden’s passenger, Anthony Weeks. Bodden and Weeks consented to being
searched, so Deputy Cole moved Weeks to the front left wheel of his car to
conduct a pat-down.
During the pat-down, a plastic bag fell from Weeks’ pants. At that point, a
civilian who was riding along with Cole that evening, David Bright, began
shouting. Deputy Cole testified he saw Bodden pull something out of his
waistband that looked like a small chrome pistol. While drawing his own weapon,
Cole yelled at Bodden to drop the object and show his hands. Bodden, however,
put the object behind his leg. Bodden turned toward Cole with the object in his
hand, and Cole fired two shots. The object in Bodden’s hand turned out to be a
package containing a misdemeanor quantity of marijuana.
II. DISCUSSION
Appellant argues that Deputy Cole’s use of deadly force was objectively
unreasonable because Bodden was unarmed and posed no threat when Cole shot
him. Appellant vigorously disagrees with the district court’s findings regarding the
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videotape of the incident recorded by Deputy Cole’s dashboard camera. She
contends the video does not show anything in Bodden’s left hand, Bodden cannot
be seen to turn towards Cole, and nothing dropped from Bodden’s hand after he
was shot. Deputy Cole argues that he mistakenly, but reasonably, believed that
Bodden was in the act of brandishing a gun and his use of deadly force was
therefore objectively reasonable.
Based upon our de novo review of the record, including the videotape, see
Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010), we agree with the district
court’s summation of the events depicted in the video. 1 The district court rejected
Appellant’s version of events, explaining:
The video is clear that Bodden is holding a cigarette in his right hand.
It is Bodden’s left hand that is the focus of this Court’s attention. It is
with his left hand that Bodden retrieves the bag of marijuana from his
pants. Bodden holds this bag in his hand until he is shot by Cole. In
fact, Bodden can be seen dropping this object, from his left hand,
when he is reaching for his chest area after being shot.
Our review of the video confirms that, during the traffic stop, Bodden
quickly moved his hand away from the area near his left side, which caused Bright
to shout. Deputy Cole and Bright began simultaneously shouting orders at
Bodden, who turned toward Cole with an object in his hand. Deputy Cole then
1
It is undisputed that Deputy Cole was acting within the scope of his discretionary
authority when the shooting occurred. See Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291
(11th Cir. 2009). Thus, the burden shifted to Appellant to establish that Deputy Cole’s conduct
violated a clearly established statutory or constitutional right of which a reasonable person would
have known. See id.
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fired two shots. In the video, as Bodden doubles over, a dark object can be seen to
drop from his left hand. 2
Our qualified immunity jurisprudence cautions that “we must be careful to
evaluate the reasonableness of an officer’s conduct 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.” Penley, 605 F.3d at 850 (internal quotation marks omitted).
Thus, under the Fourth Amendment, Deputy Cole was entitled to qualified
immunity “if an objectively reasonable officer in the same situation could have
believed the use of force was not excessive.” Brown v. City of Huntsville, 608 F.3d
724, 738 (11th Cir. 2010); see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821
(11th Cir. 2010) (explaining that an officer may be entitled to qualified immunity
even if his belief in the necessity of force was mistaken). In light of the
information available to Deputy Cole and the tense, uncertain, and rapidly evolving
situation he confronted, we conclude the use of deadly force was objectively
reasonable and decline to second-guess his split-second judgment. See Penley, 605
F.3d at 850; see also Graham v. Connor, 490 U.S. 386, 396–97 (1989).
2
We need not adopt the nonmoving party’s version of the facts to the extent it is clearly
contradicted by a videotape such that no reasonable jury could believe it. See Beshers v.
Harrison, 495 F.3d 1260, 1262 n.1 (11th Cir. 2007); see also Scott v. Harris, 550 U.S. 372, 380–
81 (2007).
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In the absence of a Fourth Amendment violation, Sheriff Seagraves cannot
be liable in his official capacity under § 1983, and we need not address Appellant’s
cause of action for municipal liability. See Penley, 605 F.3d at 854–55.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.
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