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.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 5:13-cv-00113-ACC-PRL
ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
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.
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panel's non-published, and thus non-precedential,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'
case is not en-banc worthy because the panel's decision
is correct and establishes no circuit precedent.
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
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).
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.
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.
After Chasing a Motorcycle Speeding at 90 mph, Deputy
Sylvester Finds the Still-Hot Motorcycle in Front of
Apartment 114 (where Mr. Scott Resided).
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.
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
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.
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."
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."
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."
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
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.
Officers Focus Attention on Apartment 114.
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.
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.)
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.
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.
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.
Officers Took Reasonable Safety Precautions
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.
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
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.
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
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
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.
Deputy Sylvester's Split-Second Decision
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."
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
EXCESSIVE FORCE ANALYSIS
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
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.
Objective Reasonableness Test
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.
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
"[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).
Objective Reasonableness of Deputy Sylvester's
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."
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.
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.
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 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.
Fair Notice Requires Prior Cases with Particularized
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)).
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
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 ...