Case: 19-13080 Date Filed: 03/20/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13080 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cv-00288-PGB-GJK
CARLOS IVAN VICENTE-ABAD,
Plaintiff - Appellee,
versus
TIMOTHY SONNENBERG, in his Individual Capacity,
Defendant - Appellant,
CITY OF MELBOURNE POLICE DEPARTMENT, et al.,
Defendants.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 20, 2020) Case: 19-13080 Date Filed: 03/20/2020 Page: 2 of 9
Before WILSON, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Officer Timothy Sonnenberg appeals from an order of the United States
District Court for the Middle District of Florida denying in part his motion for
summary judgment. On appeal, he argues that he is entitled to qualified immunity
on Carlos Vicente-Abad’s claim—under 42 U.S.C. § 1983—that Officer
Sonnenberg used excessive force in violation of the Fourth Amendment when he
shot Vicente-Abad, who was a passenger in a vehicle that Officer Sonnenberg and
his partner had been following.
I
Given the case’s procedural posture, we take the facts in the light most
favorable to Vicente-Abad, as the non-moving party. Stephens v. DeGiovanni, 852
F.3d 1298, 1313 (11th Cir. 2017). Vicente-Abad was a passenger in a grey sedan
that Officer Sonnenberg and his partner had purportedly seen driving above the
posted speed limit. Finding the vehicle suspicious, Officer Sonnenberg and his
partner followed the sedan into the parking lot of an apartment complex, shined a
spotlight from their patrol vehicle onto the sedan, and then disembarked to
approach on foot. Officer Sonnenberg lagged behind his partner because he was
retrieving a flashlight from the car. When his partner reached the sedan, it started
to move forward at four to five miles per hour. At that time, Officer Sonnenberg
2 Case: 19-13080 Date Filed: 03/20/2020 Page: 3 of 9
was still next to his patrol vehicle, about 60 feet away from the sedan. He was
standing in a relatively narrow gap between the side of his patrol vehicle and a row
of parked cars—the distance between the open door of his patrol vehicle and the
row of cars was subsequently measured to be about six feet. The sedan passed
through this gap, but it was not angled directly at Officer Sonnenberg, and he was
not struck by the sedan as it passed. As the sedan approached and passed Officer
Sonnenberg, he fired ten rounds at it—five entered the front of the car, four entered
the driver’s side, and one apparently missed entirely. One of the shots hit Vicente-
Abad, injuring his neck and bicep. The sedan continued approximately 130 feet
past the patrol vehicle before coming to a stop, after which Vicente-Abad exited
the vehicle and was placed under arrest.
Vicente-Abad sued Officer Sonnenberg, claiming—among other things—
that the shooting was an exercise of excessive force in violation of the Fourth
Amendment. Officer Sonnenberg moved for summary judgment, insisting that the
shooting was not unreasonable and, in any event, that he should be entitled to
qualified immunity under the circumstances. The district court denied the motion
as to that Fourth Amendment claim.
II
“We review de novo a district court’s denial of qualified immunity,” Piazza
v. Jefferson Cty., 923 F.3d 947, 951 (11th Cir. 2019), and therefore “apply the
3 Case: 19-13080 Date Filed: 03/20/2020 Page: 4 of 9
same legal standards as the district court.” Stephens, 852 F.3d at 1313 (quotation
omitted). Accordingly, “[w]e resolve all issues of material fact in favor of the
plaintiff, and then determine the legal question of whether the defendant is entitled
to qualified immunity under that version of the facts.” Id. (quotation omitted).
But, “[t]hough the facts must be taken in the light most favorable to [Vicente-
Abad], the determination of reasonableness must be made from the perspective of
the officer.” Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005).
III
A
An officer seeking to assert a qualified immunity defense must first
“establish[] that he was acting within his discretionary authority.” Bailey v.
Swindell, 940 F.3d 1295, 1300 (11th Cir. 2019) (internal quotation marks and
citation omitted). Once an officer does so, “the burden shifts to the plaintiff to
show both (1) that [he] suffered a violation of a constitutional right and (2) that the
right [he] claims was ‘clearly established’ at the time of the alleged misconduct.”
Id. at 1300 (alterations in original) (internal quotation marks and citation omitted).
The Fourth Amendment prohibits “unreasonable . . . seizures.” U.S. Const.
amend. IV. There is no doubt that Officer Sonnenberg seized Vicente-Abad within
the meaning of the Fourth Amendment when he shot him. Tennessee v. Garner,
471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of
4 Case: 19-13080 Date Filed: 03/20/2020 Page: 5 of 9
deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment.”). The only question is whether that seizure was “‘objectively
reasonable’ in light of the facts and circumstances confronting” Officer
Sonnenberg. Graham v. Connor, 490 U.S. 386, 397 (1989).
More specifically, Vicente-Abad argues that shooting constituted excessive
force—more force than was reasonable given the circumstances. The Supreme
Court has made clear that the “totality of the circumstances” should be considered
when deciding whether an application of force was excessive, Garner, 471 U.S. at
8–9, but certain factors have been singled out as particularly important.
Specifically, we have focused on three factors taken from the Supreme Court’s
opinion in Graham: “the severity of the crime at issue, whether the suspect pose[d]
an immediate threat to the safety of the officers or others, and whether he [wa]s
actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396;
see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). In
addition to the Graham factors that bear on the use of force, generally, “[w]e have
distilled from Tennessee v. Garner three key factors concerning the reasonableness
of the use of deadly force,” in particular. Terrell v. Smith, 668 F.3d 1244, 1251
(11th Cir. 2012) (emphasis added) (citation omitted). As we explained in Terrell:
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Case: 19-13080 Date Filed: 03/20/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13080 Non-Argument Calendar ________________________
D.C. Docket No. 6:18-cv-00288-PGB-GJK
CARLOS IVAN VICENTE-ABAD,
Plaintiff - Appellee,
versus
TIMOTHY SONNENBERG, in his Individual Capacity,
Defendant - Appellant,
CITY OF MELBOURNE POLICE DEPARTMENT, et al.,
Defendants.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 20, 2020) Case: 19-13080 Date Filed: 03/20/2020 Page: 2 of 9
Before WILSON, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Officer Timothy Sonnenberg appeals from an order of the United States
District Court for the Middle District of Florida denying in part his motion for
summary judgment. On appeal, he argues that he is entitled to qualified immunity
on Carlos Vicente-Abad’s claim—under 42 U.S.C. § 1983—that Officer
Sonnenberg used excessive force in violation of the Fourth Amendment when he
shot Vicente-Abad, who was a passenger in a vehicle that Officer Sonnenberg and
his partner had been following.
I
Given the case’s procedural posture, we take the facts in the light most
favorable to Vicente-Abad, as the non-moving party. Stephens v. DeGiovanni, 852
F.3d 1298, 1313 (11th Cir. 2017). Vicente-Abad was a passenger in a grey sedan
that Officer Sonnenberg and his partner had purportedly seen driving above the
posted speed limit. Finding the vehicle suspicious, Officer Sonnenberg and his
partner followed the sedan into the parking lot of an apartment complex, shined a
spotlight from their patrol vehicle onto the sedan, and then disembarked to
approach on foot. Officer Sonnenberg lagged behind his partner because he was
retrieving a flashlight from the car. When his partner reached the sedan, it started
to move forward at four to five miles per hour. At that time, Officer Sonnenberg
2 Case: 19-13080 Date Filed: 03/20/2020 Page: 3 of 9
was still next to his patrol vehicle, about 60 feet away from the sedan. He was
standing in a relatively narrow gap between the side of his patrol vehicle and a row
of parked cars—the distance between the open door of his patrol vehicle and the
row of cars was subsequently measured to be about six feet. The sedan passed
through this gap, but it was not angled directly at Officer Sonnenberg, and he was
not struck by the sedan as it passed. As the sedan approached and passed Officer
Sonnenberg, he fired ten rounds at it—five entered the front of the car, four entered
the driver’s side, and one apparently missed entirely. One of the shots hit Vicente-
Abad, injuring his neck and bicep. The sedan continued approximately 130 feet
past the patrol vehicle before coming to a stop, after which Vicente-Abad exited
the vehicle and was placed under arrest.
Vicente-Abad sued Officer Sonnenberg, claiming—among other things—
that the shooting was an exercise of excessive force in violation of the Fourth
Amendment. Officer Sonnenberg moved for summary judgment, insisting that the
shooting was not unreasonable and, in any event, that he should be entitled to
qualified immunity under the circumstances. The district court denied the motion
as to that Fourth Amendment claim.
II
“We review de novo a district court’s denial of qualified immunity,” Piazza
v. Jefferson Cty., 923 F.3d 947, 951 (11th Cir. 2019), and therefore “apply the
3 Case: 19-13080 Date Filed: 03/20/2020 Page: 4 of 9
same legal standards as the district court.” Stephens, 852 F.3d at 1313 (quotation
omitted). Accordingly, “[w]e resolve all issues of material fact in favor of the
plaintiff, and then determine the legal question of whether the defendant is entitled
to qualified immunity under that version of the facts.” Id. (quotation omitted).
But, “[t]hough the facts must be taken in the light most favorable to [Vicente-
Abad], the determination of reasonableness must be made from the perspective of
the officer.” Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005).
III
A
An officer seeking to assert a qualified immunity defense must first
“establish[] that he was acting within his discretionary authority.” Bailey v.
Swindell, 940 F.3d 1295, 1300 (11th Cir. 2019) (internal quotation marks and
citation omitted). Once an officer does so, “the burden shifts to the plaintiff to
show both (1) that [he] suffered a violation of a constitutional right and (2) that the
right [he] claims was ‘clearly established’ at the time of the alleged misconduct.”
Id. at 1300 (alterations in original) (internal quotation marks and citation omitted).
The Fourth Amendment prohibits “unreasonable . . . seizures.” U.S. Const.
amend. IV. There is no doubt that Officer Sonnenberg seized Vicente-Abad within
the meaning of the Fourth Amendment when he shot him. Tennessee v. Garner,
471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of
4 Case: 19-13080 Date Filed: 03/20/2020 Page: 5 of 9
deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment.”). The only question is whether that seizure was “‘objectively
reasonable’ in light of the facts and circumstances confronting” Officer
Sonnenberg. Graham v. Connor, 490 U.S. 386, 397 (1989).
More specifically, Vicente-Abad argues that shooting constituted excessive
force—more force than was reasonable given the circumstances. The Supreme
Court has made clear that the “totality of the circumstances” should be considered
when deciding whether an application of force was excessive, Garner, 471 U.S. at
8–9, but certain factors have been singled out as particularly important.
Specifically, we have focused on three factors taken from the Supreme Court’s
opinion in Graham: “the severity of the crime at issue, whether the suspect pose[d]
an immediate threat to the safety of the officers or others, and whether he [wa]s
actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396;
see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). In
addition to the Graham factors that bear on the use of force, generally, “[w]e have
distilled from Tennessee v. Garner three key factors concerning the reasonableness
of the use of deadly force,” in particular. Terrell v. Smith, 668 F.3d 1244, 1251
(11th Cir. 2012) (emphasis added) (citation omitted). As we explained in Terrell:
[A]n officer may use deadly force to stop a fleeing felony suspect when the officer: (1) has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others or that he has committed a crime involving the infliction or 5 Case: 19-13080 Date Filed: 03/20/2020 Page: 6 of 9
threatened infliction of serious physical harm; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.
Id. (internal quotation marks and citation omitted).
Even when an officer violated someone’s constitutional rights, that officer
may still be shielded from liability if the right he violated was not “‘clearly
established’ at the time of the alleged misconduct.” Bailey, 940 F.3d at 1300
(quotation omitted). And although “[t]he basic constitutional law governing
excessive force in arrest situations was well established” long before Officer
Sonnenberg shot Vicente-Abad, Stephens, 852 F.3d at 1316, qualified immunity
still protects officers “in close cases where a reasonable officer could have
believed that his actions were lawful,” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th
Cir. 2002). But “qualified immunity is not appropriate when the Graham analysis
yields an answer that is clear beyond all doubt.” Id. In such cases, “officials can
still be on notice that their conduct violates established law even in novel factual
circumstances,” because the “general constitutional rule[s]” of Graham and
Garner “apply with obvious clarity to the specific conduct in question.” Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (emphasis added).
B
Taking the facts in the light most favorable to Vicente-Abad, we agree with
the district court—Officer Sonnenberg is not entitled to qualified immunity. 6 Case: 19-13080 Date Filed: 03/20/2020 Page: 7 of 9
Officer Sonnenberg used constitutionally unreasonable force when he opened fire
on a vehicle approaching him at a jogging pace from 60 feet away, angled so as to
pass him by—not on a trajectory to collide with him. For one thing, the Graham
factors do not support so severe an application of force here. At the time of the
shooting, Officer Sonnenberg had no reason to believe that any serious crime had
been committed. At most, he had witnessed a violation of a speed limit, although
taking the facts in the light most favorable to Vicente-Abad, he was mistaken even
as to that violation. Additionally, Officer Sonnenberg could not have reasonably
believed that his life was in danger; although he was nearly in the path of an
oncoming car, it was moving slowly and was far enough away to give him plenty
of time to react. Indeed, the sedan ultimately passed Officer Sonnenberg by
without striking him. He had time enough not only to get out of the way, but to
fire ten rounds in the process. And finally, while it does appear that the driver of
the sedan was attempting to evade the police, the officers had not informed the
occupants that they were under arrest or being detained. The officers had not even
used the lights or sirens on their patrol vehicle to pull the sedan over. Instead, they
followed the car, shined a spotlight on it, and approached on foot without giving
any instructions to its occupants.
Perhaps more importantly, the Garner factors that we have singled out for
evaluating applications of deadly force weigh heavily against Officer Sonnenberg.
7 Case: 19-13080 Date Filed: 03/20/2020 Page: 8 of 9
As already explained, Officer Sonnenberg had no reason to believe that anyone
was in danger, nor that anyone in the car had committed a crime that posed a risk
of serious physical harm. As a result, while he may have believed that deadly
force was necessary to prevent escape, preventing escape was not an important
enough goal in the circumstances for a reasonable officer to believe that deadly
force was justified. In addition, Officer Sonnenberg had time to warn the
occupants of the car that he would employ deadly force, but he opened fire without
issuing a warning.
After weighing these factors, it is clear that Officer Sonnenberg violated
Vicente-Abad’s constitutional rights by employing deadly force unreasonably.
Moreover, because the unreasonableness of the shooting is apparent in light of the
Graham factors and still more obvious in light of the Garner factors, Vicente-
Abad’s right not to be fired on in this situation was clearly established at the time.
Our decision in Robinson v. Arrugueta, 415 F.3d 1252, on which Officer
Sonnenberg relies, is inapposite. Although that case also involved an officer who
feared being run over by a slowly moving vehicle, it differs in significant
respects—the very respects that our precedent has singled out as important. Id. at
1254. There, the officer had reason to believe that the driver of the vehicle was a
heroin dealer. Id. at 1253–54. The officer had already instructed the driver to put
his hands up before the vehicle began to move toward him. Id. at 1254. And
8 Case: 19-13080 Date Filed: 03/20/2020 Page: 9 of 9
although the vehicle began to move slowly, the officer was standing in a narrow
gap between the front of the suspect vehicle and his patrol car—no more than four
feet wide—and was therefore in danger of being crushed between the vehicles. Id.
He had less than three seconds to react at most. Id.
The differences between Robinson and this case are decisive in light of
Graham and Garner. The officer in Robinson was dealing with a much more
serious crime than Officer Sonnenberg had any reason to suspect. See Graham,
490 U.S. at 396. He was also in immediate danger of serious harm, with little time
to react. Id. Moreover, the officer in Robinson issued a warning before employing
deadly force, 415 F.3d at 1254, which Officer Sonnenberg failed to do. Terrell,
668 F.3d at 1251 (citing Garner, 471 U.S. at 11–12). In short, Robinson is entirely
dissimilar from this case in the ways that matter most, according to our precedent.
* * *
The district court correctly determined that, viewing the facts in the light
most favorable to Vicente-Abad, Officer Sonnenberg violated his clearly
established constitutional rights. Accordingly, we AFFIRM.