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Young v. Borders

United States Court of Appeals, Eleventh Circuit

March 16, 2017

AMY YOUNG, as Co-Personal Representative of the Estate of Andrew Lee Scott, deceased, JOHN SCOTT, as Co-Personal Representative of the Estate of Andrew Lee Scott, deceased, MIRANDA MAUCK, individually, Plaintiffs-Appellants,
GARY S. BORDERS, in his official capacity as Sheriff of Lake County, Florida, RICHARD SYLVESTER, in his individual capacity, Defendants-Appellees.

         Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:13-cv-00113-ACC-PRL


         BY THE COURT:

         A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

         A majority of the Court has voted not to rehear en banc the panel's non-published, and thus non-precedential, decision. The district court entered a thorough (44-page) order granting qualified immunity to the defendant, Deputy Sylvester, in this § 1983 police-shooting case. In its summary decision, the panel found "no reversible error" in the district court's qualified immunity rulings, stating in full:

After review of the record and with the benefit of oral argument by counsel for the parties, this Court finds no reversible error in the district court's September 18, 2014 order (1) granting defendants Sheriff Gary S. Borders and Deputy Richard Sylvester's motion for summary judgment with respect to all of plaintiffs Amy Young, John Scott, and Miranda Mauck's 42 U.S.C. § 1983 claims against Sheriff Borders, in his official capacity as Sheriff of Lake County, Florida, and Deputy Sylvester, in his individual capacity, and state law claims for wrongful death of the decedent, Andrew Scott, assault of Mauck, and false imprisonment of Mauck, and (2) denying plaintiffs Young, Scott, and Mauck's motion for partial summary judgment with respect to their § 1983 claims against defendant Borders. We echo the district court's expression of sympathy for the plaintiffs' loss, but while the facts of this case are tragic, we can find no reversible error in the district court's ultimate qualified immunity rulings. Accordingly, we must affirm the district court's final judgment in favor of the defendants on all of plaintiffs' claims.

         This case is not en-banc worthy because the panel's decision is correct and establishes no circuit precedent.

         Although orders denying rehearing en banc also have no precedential effect, our colleagues have written two lengthy dissents to this order denying rehearing en banc. Two of the original panel members now write to explain the errors in those dissents.

         First, although the district court ruled that Deputy Sylvester's conduct violated no "clearly established law" as of July 15, 2012, the dissents fail to identify any cases with facts similar to the undisputed facts here, much less any similar cases where an officer was held to have violated the Fourth Amendment. See White v. Pauly, 580 U.S. ___, ___, 137 S.Ct. 548, 552 (2017) (per curiam) (admonishing that, in qualified immunity cases, "clearly established law should not be defined at a high level of generality, " "must be 'particularized' to the facts of the case, " and must give "fair and clear warning" to officers that their conduct is unlawful under the Fourth Amendment).

         Second, the dissents omit key, undisputed facts in their recitations of what defendant Deputy Sylvester saw, was told, and then did on this night when he tragically shot and killed Mr. Scott, an innocent young man. Here are the complete facts that show what happened that summer night and why the panel properly found no reversible error in the district court's qualified immunity ruling.


         We review an order granting summary judgment de novo, viewing the facts of the case in the light most favorable to the party opposing the motion. Vinyard v. Wilson, 311 F.3d 1340, 1346 n.7 (11th Cir. 2002). We therefore recite the facts in the light most favorable to the plaintiffs, even though the defendants dispute the plaintiffs' version of the events. Id. at 1343 n.1.[1]

         A. After Chasing a Motorcycle Speeding at 90 mph, Deputy Sylvester Finds the Still-Hot Motorcycle in Front of Apartment 114 (where Mr. Scott Resided).

         Sometime after 1:00 a.m. on July 15, 2012, defendant Deputy Sylvester was in his squad car and spotted a motorcycle driving upwards of 90 mph, well in excess of the posted speed limit. After making a U-turn to pursue it, Deputy Sylvester maintained sight of the motorcycle and watched it race down U.S. 441 before turning left onto County Road 44. Sylvester followed, also turning onto 44. He soon lost sight of the motorcycle.

         Deputy Sylvester radioed dispatch to report that he had pursued and lost sight of the motorcycle. Sylvester reports that dispatch advised the motorcyclist might be the same person being sought by the Leesburg Police Department and he might have a pistol. Shortly thereafter, Sylvester received a radio message from Corporal David McDaniel reporting that he had "probably located the motorcycle at the Blueberry Hill apartments."

         Corporal McDaniel had heard Deputy Sylvester's report about the speeding motorcycle and checked out a few places in the Leesburg area. One place was the Blueberry Hill apartment complex located about a mile from where Sylvester originally spotted the 90 mph speeding motorcycle. When McDaniel pulled into the complex, McDaniel noticed a parked motorcycle and could "hear the motorcycle's motor still popping and crackling because it was hot." McDaniel notified Sylvester of his discovery.

         Contemporaneously, Deputy Joseph Brocato, who was five miles away from Blueberry Hill, overheard on the Leesburg police radio channel that a "motorcycle had fled from them and the matter also involved an assault and battery with a loaded firearm." Brocato heard that the Leesburg police had lost the motorcycle and had called off the pursuit. Brocato then heard Sylvester's report of a speeding motorcycle, and, given their physical proximity, Brocato wondered if both reports involved the same motorcycle. Shortly thereafter, Brocato overheard Corporal McDaniel's message about the motorcycle at Blueberry Hill. Brocato went to the Blueberry Hill complex where McDaniel was. When he arrived, Brocato "looked at the motorcycle, " and "[i]ts engine was still hot."

         After receiving Corporal McDaniel's message, Deputy Sylvester drove to Blueberry Hill. As he pulled into the complex, McDaniel and Deputy Brocato were already there, and Sylvester identified the suspect motorcycle as the one he had pursued and lost earlier. Sylvester said "[t]he motorcycle's engine was still warm, as was the headlight."

         In his deposition, Deputy Sylvester was asked: "Were you able to positively identify that motorcycle as the motorcycle that had sped past you earlier?" Deputy Sylvester answered "Yes, sir." Deputy Sylvester also said that, while he could not identify the make and model, it was a dark-colored bike and "it was a sport-bike."

         A fourth officer, Deputy Lisa Dorrier, arrived after hearing the motorcycle reports. Once gathered, Deputy Brocato shared with the group the radio reports about the Leesburg police's pursuit of a motorcyclist who was possibly armed.

         In sum, the still-hot motorcycle parked in front of Apartment 114 appeared to be (1) the same 90 mph speeding motorcycle Deputy Sylvester had pursued and (2) the same motorcycle, as the Leesburg police had warned, of an armed suspect involved earlier in an assault and battery incident. These facts-about how and why the officers arrived at the motorcycle parked directly in front of Apartment 114 where Mr. Scott resided-are not disputed.

         B. Officers Focus Attention on Apartment 114.

         Next to the still-hot motorcycle, the officers noticed a Chevy TrailBlazer SUV. Corporal McDaniel ran the motorcycle's license tag number through the DAVID database and learned that the motorcycle was registered to "Jonathan Brown" at an address in Mount Dora, Florida. After running the Chevy's tag number, McDaniel learned that the Chevy was also registered to Brown at the same Mount Dora address. Deputy Brocato ran the license tag information too and learned that both the Chevy and the motorcycle were registered to Brown. Although the Blueberry Hill complex was not in Mount Dora, both vehicles were registered to the same owner and parked side-by-side in front of Apartment 114. Record photos show Apartment 114's exterior and the motorcycle and the Chevy parked near Apartment 114.

         (Image Omitted)

         (The door in the center of the photograph is the front door of Apartment 114. The number "114" appears to the right of the front door.)

         The officers noticed lights illuminated inside of Apartment 114 but not in nearby apartments. Deputy Sylvester observed a fresh footprint in the sand next to the motorcycle leading toward 114. Other officers do not recall seeing a footprint.

         The officers decided to knock on doors in the complex, starting with Apartment 114, to try to gather information about the owner of the motorcycle. The officers could not be certain whether the armed motorcyclist was in 114 or in a different apartment since they knew that the complex did not have assigned parking. The officers stated that the occupants were not suspects. Nonetheless, believing the man they were pursuing might be armed and might be in 114, the officers took "tactical positions" around the front door of 114 before knocking.

         The uniformed officers parked their four patrol vehicles in plain view outside Apartment 114. There was a front window next to the front door of 114.

         C. Officers Took Reasonable Safety Precautions

         The officers' positions, before Deputy Sylvester knocked on the door to Apartment 114, are not disputed. Deputy Sylvester positioned himself to the left of the front door, near the exterior wall. Sylvester states that "[f]rom there, [he] could see whoever opened the door and they could see [him]." The front door is hinged on the left side of the doorframe and opens inward. Sylvester stood only a few feet from the front door-not on the stoop, but on the ground to the left of the stoop. Sylvester stood in a clear line of sight of anyone who might open the door. He held an illuminated "blue light" flashlight. Corporal McDaniel stood to the right of the front door with his right shoulder touching the exterior wall.

         As the photo shows, a short privacy fence separates Apartment 114 from Apartment 115. Deputies Brocato and Dorrier stood in front of 115 on the other side of the fence separating them from Deputy Sylvester. Brocato could see only Sylvester's head over the fence. Other officers also held lit "blue light" flashlights.

         Although only two of the four officers were in front of Apartment 114 as they took their positions, all four officers had their guns drawn. Notably, Deputy Sylvester held his gun behind his leg and prepared to knock. Sylvester states that he did not announce that he was with the Sheriff's Office because he was planning to try to speak with the occupants to see if he could obtain any information about the suspect owner of the motorcycle parked out front.

         Deputy Sylvester began knocking on the front door of Apartment 114. Viewed in the light most favorable to the plaintiffs, these were loud knocks. A neighbor remembers that an officer "banged" on the door "just three times, just boom, boom, boom." Mr. Scott and Plaintiff Mauck (his girlfriend) were inside the lit Apartment 114. Mauck testified that the knocking sounded like "bang, bang, bang; wait; and then bang, bang, bang." Mauck described the knocks as "scary" and "very startling."[2]

         A resident inside Apartment 115 (next door) heard the knocking and opened his front door before Mr. Scott, in Apartment 114, opened his door. Deputy Dorrier re-holstered her gun, went to 115's front door, and told the resident that the officers were looking for the owner of the motorcycle. Dorrier reports that "[t]he man gestured with his right hand towards the building to his right and said, 'He lives over there.'"

         Deputy Sylvester overheard a portion of this conversation and remembers hearing the resident say, "He lives over there." This gave Sylvester the impression that the armed motorcyclist might be inside Apartment 114, although Sylvester did not see in which direction the resident pointed. Upon Deputy Sylvester's hearing "He lives over there, " Sylvester saw 114's door suddenly open. The next events unfolded in a few seconds.

         D. Deputy Sylvester's Split-Second Decision

         Everyone agrees that the occupant, Mr. Scott, opened the door with a gun in his hand. Deputy Sylvester says the gun was pointed directly at him, but Plaintiff Mauck says Mr. Scott held his gun down by his side. We must credit the plaintiffs' version of events. Thus, only the fact that Mr. Scott held a gun and was only a few feet from Sylvester is undisputed. No one, however, contradicts Sylvester's testimony that Mr. Scott, with a gun in hand, moved and began backing away behind the door in a sudden movement that Sylvester perceived as an attempt to edge back and take cover "so he could fire on me."

         The entire incident at the door took about two seconds. Although knocking to gather information, Deputy Sylvester then saw an occupant open the door with a gun and appear to move to fire, and Sylvester then made a split-second judgment that the person was the armed motorcyclist and presented an immediate danger of serious bodily harm. In mere seconds, this investigatory action turned tragic as Sylvester shot and killed Mr. Scott, an innocent young man who was not the motorcyclist.


The district court emphasized the unsettling and difficult nature of this case:
The facts giving rise to Plaintiffs' claims present a tragic story. As is oftentimes true, viewing present circumstances through the unforgiving lens of hindsight is unsettling because it is easy to focus on the innumerable and imaginary "what if" scenarios. This case is no exception; any number of events in this case could have gone differently, even however so slightly, which may have avoided the sad and unfortunate death of Andrew Scott. However, as discussed more fully below, the legal analysis is not so simple.

Young v. Borders, No. 5:13-CV-113-OC-22PRL, 2014 WL 11444072, at *2 (M.D. Fla. Sept. 18, 2014). The district court's legal analysis follows.

         A. Objective Reasonableness Test

         There is no question Deputy Sylvester subjectively perceived an imminent threat of serious bodily harm. But the proper legal inquiry is an objective one. The district court recognized that the only relevant question is whether a police officer in this same situation could have reasonably and objectively perceived this person with a gun as posing an immediate threat of serious bodily harm.

         A Fourth Amendment seizure occurs when a police officer uses excessive force against a person. Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 1776 (2007). An officer may use deadly force against only a person whom an officer reasonably perceives as posing an imminent threat of serious physical harm to the officer or others. Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005); McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1246 (11th Cir. 2003). Reasonableness depends on all the circumstances relevant to an officer's decision to use force and the amount of force used. McCormick, 333 F.3d at 1246. "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene" and the inquiry "is an objective one." Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872 (1989). Thus, the district court properly viewed the circumstances from the perspective of a reasonable officer on the scene at Apartment 114.

         Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, " its proper application also "requires careful attention to the facts and circumstances of each particular case." Graham, 490 U.S. at 396, 109 S.Ct. at 1872 (internal quotation marks omitted). In its order, the district court recited the facts at length and properly "analyz[ed] the totality of the circumstances." Plumhoff v. Rickard, 572 U.S. ___, ___, 134 S.Ct. 2012, 2020 (2014).

         B. Objective Reasonableness of Deputy Sylvester's Split-Second Decision

         Based on the total circumstances that led Deputy Sylvester to knock on the 114 door, the district court concluded that a police officer, with Sylvester's knowledge, could have reasonably perceived in that split-second (1) that the person who opened the 114 door with a gun in his hand was the reported armed motorcyclist, (2) that the person's sudden movement-backing and edging behind the door-was an attempt to take cover to fire, and (3) that the person thus posed an imminent "threat of serious physical harm" to Sylvester. See Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (quoting McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009)). This is because a reasonable officer in Sylvester's position, facing the occupant holding a gun, already would have known the following: (1) there were police reports of an armed motorcyclist in the area who recently was involved in a violent incident; (2) Sylvester had just pursued, but lost sight of, a 90 mph speeding motorcycle in the same area; (3) Sylvester and his fellow officers located a similar motorcycle nearby in front of Apartment 114 that was recently driven and still hot; (4) this motorcycle was parked next to a Chevy registered to the same person; (5) the motorcycle's armed driver had presumably gone into a nearby apartment right before the officers arrived; (6) only one of the nearby apartments had lights on, and that was 114, the one directly in front of the still-hot motorcycle and Chevy; and (7) the occupant of Apartment 115 next door answered and said, "He lives over there."

         The district court reasoned that it "must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make a split-second decision between action and inaction in circumstances where inaction could prove fatal." Young, 2014 WL 11444072, at *14 (quoting Crosby v. Monroe Cty., 394 F.3d 1328, 1334 (11th Cir. 2004)); see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820-21 (11th Cir. 2010). These types of split-second decisions occur "in circumstances that are tense, uncertain, and rapidly evolving, " Graham, 490 U.S. at 397, 109 S.Ct. at 1872.

         Importantly, the district court concluded that this was not just Sylvester's subjective belief but an objectively reasonable perception of an officer on the scene. The district court concluded that Sylvester was not required to wait and see what might happen if he did not stop Mr. Scott, citing Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ("[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."). The district court concluded that Deputy Sylvester's split-second decision to use deadly force was objectively reasonable under the total circumstances-a reasonably perceived imminent threat of serious physical harm-and was not a constitutional violation.


         Although the district court ruled on the constitutional violation issue, our panel did not need to decide it. This is because the district court also concluded that "[e]ven if . . . Sylvester violated Scott's constitutional rights . . . by using excessive force, Sylvester would be entitled to qualified immunity because he violated no clearly established right." Young, 2014 WL 11444072, at *18. The panel simply and correctly found "no reversible error in the district court's ultimate qualified immunity rulings." At a minimum, no clearly established federal law as of July 15, 2012[3] gave fair and clear notice to Deputy Sylvester that his conduct in these unique circumstances was objectively unreasonable and unlawful, and thus "no reversible error" was shown. We explain why the district court did not err on the clearly established prong.

         A. Fair Notice Requires Prior Cases with Particularized Facts.

         "Qualified immunity attaches when an official's conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" White, 580 U.S. at ___, 137 S.Ct. at 551 (quoting Mullenix v. Luna, 577 U.S. ___, ___, 136 S.Ct. 305, 308 (2015) (per curiam)). In the last five years, the Supreme Court has issued a number of opinions reversing federal courts that denied qualified immunity, often because they applied the clearly established analysis at too high a level of generality and without regard to the particular facts of prior case law. See id.; see also City & Cty. of San Francisco v. Sheehan, 575 U.S. ___, ___, 135 S.Ct. 1765, 1774 n.3 (2015) (collecting cases). The Supreme Court "found this necessary both because qualified immunity is important to 'society as a whole, ' and because as 'an immunity from suit, ' qualified immunity 'is effectively lost if a case is erroneously permitted to go to trial.'" White, 580 U.S. at ___, 137 S.Ct. at 551-52 (quoting Sheehan, 575 U.S. at ___ n.3, 135 S.Ct. at 1774 n.3, and Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009)).

         In White, the Supreme Court reiterated "the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality.'" Id. at ___, 137 S.Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 2084 (2011)). The Supreme Court explained that federal courts that relied on Graham, Garner, and their circuit court progeny, instead of identifying a prior case with similar circumstances, have "misunderstood" the "clearly established" analysis because those excessive force cases do not create clearly established law outside of an "obvious case":

The panel majority misunderstood the "clearly established" analysis: It failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which-as noted above-lay out excessive-force principles at only a general level. Of course, "general statements of the law are not inherently incapable of giving fair and clear warning" to officers, United States v. Lanier, 520 U.S. 259, 271 (1997), but "in the light of pre-existing law the unlawfulness must be apparent, " Anderson v. Creighton, supra, at 640. For that reason, we have held that Garner and Graham do not by themselves create clearly established law outside "an obvious case." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam); see also Plumhoff v. Rickard, 572 U.S. ___, ___, (2014) (slip op. at 13) (emphasizing that Garner and Graham "are 'cast at a high level of generality'").

Id. Like White, "[t]his is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham" because "this case presents a unique set of facts and circumstances, " which is "an important indication" that Deputy Sylvester's "conduct did not violate a 'clearly established' right." Id. With the help of hindsight, the dissents impermissibly second-guess Sylvester's split-second decision to use deadly force. The dissents define clearly established federal law at too high a level of generality, in contravention of the Supreme Court's precedent requiring a case with ...

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