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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12150 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cv-80824-DMM
DAYNA CHRISTINE CLAWSON, as Personal Representative of the Estate of Ricky Kevin Whidden,
Plaintiff - Appellee,
versus
JUSTIN RIGNEY, in his Individual Capacity,
Defendant - Appellant,
PALM BEACH COUNTY SHERIFF'S OFFICE,
Defendant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
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Before MARCUS, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Justin Rigney, a Sheriff’s Deputy with the Palm Beach County Sheriff’s
Office, appeals the denial of his motion for summary judgment on the basis of
qualified immunity in this § 1983 action. Deputy Rigney was one of a number of
deputies who responded to a call for service on December 31, 2016, after Ricky
Whidden armed himself with a knife and threatened suicide. During the law
enforcement encounter that followed, Rigney shot Whidden eight times, resulting
in his death. Dayna Clawson, the personal representative of Whidden’s estate,
brought excessive force and wrongful death claims against Rigney and the
Sheriff’s Office. The district court denied Rigney’s motion for summary judgment
because, making all factual inferences in the opposing party’s favor, it found that
Rigney violated Whidden’s clearly established right to be free from unreasonable
seizure, a determination that Rigney has appealed on an interlocutory basis. After
careful review, we affirm.
I.
The facts in the summary judgment record are these. At 1:05 a.m. on
December 31, 2016, Sandra Whidden called 911 to report that her son, Ricky
Whidden, was threatening to commit suicide. She told the dispatcher with the
Palm Beach County Sheriff’s Office that her son was armed with a knife and that
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he had a history of mental illness. Sandra said that they had opened the back door
of the house for the deputies to use if they needed to enter, because Ricky was
waiting for officers “to come through the front door so he can either harm you guys
or harm himself.” Ricky Whidden could be heard in the background of the call
apologizing to his parents and stating that he would never harm them or anyone
else.
Seven Palm Beach County officers were sent to the Whiddens’ residence.
When Rigney arrived, Ricky Whidden was seated outside in front of the home.
Five officers approached him in a “stick” formation, that is, in a single-file line, led
by Deputy Adam Godbey holding a ballistic shield. Deputy Rigney was last in
line, leading a police dog. Rigney called out to Whidden, saying, “We want to talk
to you, but this conversation cannot continue until I see your hands are empty and I
know you’re not armed.” Whidden complied, raising his empty hands. However,
it appeared to Rigney that Whidden had tucked something into his waist area.
Because Whidden was seated and wearing a jacket, the deputies could not be sure
whether Whidden was armed, and some thought he had a knife somewhere on him.
As the officers approached him, Whidden began to walk away toward a
neighboring lot to the east. Rigney broke off from the group to stay near the
Whidden’s home, while four deputies continued to follow Whidden as he walked
over a hedge at the boundary of the Whiddens’ property. As Whidden walked, he
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spoke to the deputies and occasionally turned around to face them while walking
backward, only revealing one hand at a time. Two video cameras from the
neighbor’s property, one facing the driveway and the other placed inside a
screened-in patio, captured the following events. Whidden sped up and began to
run, when Deputy Easterday fired a “less-lethal” 40-millimeter firearm in his
direction. Rigney later said that these shots “caught [him] off guard,” and he did
not think that the use of the 40-millimeter weapon was justified. The less-lethal
sponge round struck Whidden in the back and he fell to the ground. Whidden
regained his footing and started running north away from the group of deputies,
along the neighbor’s side of the hedge. He fell a second time and again got up and
continued running north.
Rigney, on the Whidden side of the hedge, was walking south toward
Whidden and the other officers when the less-lethal round was fired. After
Whidden got up and started running in a northerly direction away from the
officers, Rigney ran generally in Whidden’s direction and aimed his firearm in a
southeastern direction. It is clear from the video that Whidden is running away
from several officers, but Rigney’s location in relation to Whidden is not entirely
clear. Rigney recalls that Whidden was raising a knife above his shoulder as he
ran, though no other officer testified that he had seen him running with the knife in
his hand, and Whidden’s father, Owen Whidden, testified that he never saw his son
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run toward Rigney. Rigney added that nothing prevented him from continuing to
hold the position from where he was near the Whidden’s home. Rigney estimated
that the distance between them was approximately fifteen feet when he first fired.
Rigney fired eight shots, “tracing” Whidden as he ran, first firing in an east-
southeastern direction then firing more directly eastward. Whidden was struck
four times, once each on the right side of his chest, his right shoulder, his left
forearm, and his torso. He fell to the ground a third and final time, and Rigney’s
K-9 dog briefly bit at him until Rigney pulled him off. When Rigney approached
Whidden’s body, he saw the knife, with an eight-inch blade and five-inch handle,
laying in the grass next to him. Whidden died at the scene.
Dayna Christine Clawson, as personal representative of Whidden’s estate,
filed suit against Deputy Rigney and the Palm Beach County Sheriff’s Office. The
complaint included state-law claims for wrongful death against Rigney and the
Sheriff’s Office, an excessive force claim against Rigney under 42 U.S.C. § 1983,
and a failure-to-train claim against the Sheriff’s Office under Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690–91 (1978). The defendants moved for summary
judgment, which the district court granted only as to the Monell claim. The court
held that there was a genuine issue of material fact as to whether Rigney used
excessive force and that Rigney was not entitled to qualified immunity because,
taking the facts in the light most favorable to the plaintiff, his conduct violated
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Whidden’s clearly established rights under the Fourth Amendment. This
interlocutory appeal followed.
II.
We review the denial of summary judgment based on qualified immunity de
novo, applying the same standard that governed in the district court. Feliciano v.
City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). Summary judgment
should be granted only if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “If a
government official moves for summary judgment asserting entitlement to
qualified immunity, then the relevant facts are construed in the light most favorable
to the non-movant -- i.e., the plaintiff -- and the court should decide the issue based
on those facts.” Simmons v. Bradshaw, 879 F.3d 1157, 1163–64 (11th Cir. 2018).
Because we make all reasonable inferences in favor of the non-moving party,
“when conflicts arise between the facts evidenced by the parties, we credit the
nonmoving party’s version” of the story at this stage in the proceedings. Evans v.
Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc) (emphasis omitted).
Rigney argues that the district court erred in denying summary judgment on
the ground of qualified immunity. Qualified immunity shields government
officials “from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
purpose of the doctrine is to permit officials to perform their discretionary duties
“without the fear of personal liability or harassing litigation.” Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002).
To receive the benefit of qualified immunity, a “public official ‘must first
prove that he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.’” Id. (quoting Courson v. McMillian, 939 F.2d
1479, 1487 (11th Cir. 1991)). After the defendant makes this showing, “the burden
shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. To
do so, the plaintiff must show (1) that the official violated the plaintiff’s
constitutional rights, and (2) that the right in question was clearly established at the
time of the relevant events. Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d
1347, 1353 (11th Cir. 2015). The parties agree that Rigney was acting within the
scope of his discretionary authority; the dispute centers on whether the plaintiff has
met her burden to show that qualified immunity is nonetheless inappropriate.
Clawson alleges that Rigney’s use of force against Whidden was
constitutionally excessive. The Fourth Amendment right to be free from
unreasonable searches and seizures “encompasses the right to be free from
excessive force during the course of a criminal apprehension.” Oliver v. Fiorino,
586 F.3d 898, 905 (11th Cir. 2009). We evaluate whether an officer’s use of force
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was excessive under an “objective reasonableness” standard. Graham v. Connor,
490 U.S. 386, 388 (1989). The Supreme Court has instructed courts to look to
several factors when evaluating a use of force under this standard, “including the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396. “Because this standard
establishes no bright line, qualified immunity applies unless application of the
standard would inevitably lead every reasonable officer in [the officer’s] position
to conclude the force was unlawful.” Post v. City of Fort Lauderdale, 7 F.3d 1552,
1559 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994).
We conclude that there is a genuine dispute of material fact precluding
summary judgment on the issue whether Rigney violated Whidden’s right to be
free from the excessive use of force. We have previously recognized that the use
of force outside the context of a criminal arrest, when no crime has been
committed, “do[es] not fit neatly within the Graham framework.” Mercado v. City
of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (quoting Graham, 490 U.S. at
396). Still, our task remains “balancing the ‘nature and quality of the intrusion’
against the ‘governmental interest at stake’” to determine if the use of force was
objectively reasonable. Id. (quoting Graham, 490 U.S. at 396).
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The extent of the intrusion on Whidden’s liberty cannot be overstated.
Indeed, “[t]he intrusiveness of a seizure by means of deadly force is unmatched.”
Tennessee v. Garner, 471 U.S. 1, 9 (1985). And it is undisputed that Whidden had
committed no crime, so the first Graham factor, the severity of the offense, also
weighs in favor of a finding of excessive force. For the same reason, it cannot be
said that he was resisting arrest by the officers, since they had no basis to effect a
criminal arrest. That leaves the remaining factor, “whether the suspect pose[d] an
immediate threat to the safety of the officers or others.” 490 U.S. at 396. The
Supreme Court has held that “[w]here the suspect poses no immediate threat to the
officer and no threat to others, the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so.” Garner, 471 U.S. at 11. In
determining whether Whidden posed an immediate threat, we must keep in mind
that “the reasonableness of a ‘particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.’” Mercado, 407 F.3d at 1157 (quoting Graham, 590 U.S. at 396).
On the summary judgment record before us, we agree with the district court
that there are disputed facts about whether Whidden posed an immediate threat to
the safety of the officers or others. At the time he was fatally shot, Whidden was
moving away from the main group of officers. While he was getting closer to
Deputy Rigney, he is never shown in the video footage taken from the two
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surveillance cameras displaying the knife or making a threatening gesture. Indeed,
several of the deputies on the scene testified that they did not see Whidden’s knife
until after they rolled over his dead body, which is evidence that could support a
finding, for example, that Whidden had the knife tucked into his jacket. Further,
the video footage indicates that as Whidden was running north, being pelted by the
less-lethal sponge rounds, he fell twice, and was never fully upright before Rigney
fatally shot him, which bolsters the inference that Whidden’s arms were not free to
wield the knife towards Rigney.
Nor does the footage show Whidden running directly toward Rigney in a
manner that suggested he intended to attack him. He appears to have been moving
away from the group of officers in pursuit of him, not purposefully charging at
Rigney. Whidden’s father testified that he never saw his son run toward Rigney,
although it is unclear from where he viewed the encounter. In addition, the fact
that Rigney’s shots were fired in, as he testified, an “east southeast” direction while
Whidden was running north and Rigney was moving east or south (the record is
not definitive) provides further support for the idea that Whidden was running past
Rigney, not charging toward him and placing him in imminent danger.
It is also worth noting that Whidden, by all accounts, was not armed with a
gun. He had a knife somewhere on him, and there was at least fifteen feet between
him and Rigney, which included a three-foot tall hedge that he would have had to
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get over to attack Rigney. See Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th
Cir. 2016) (observing that “a person standing six feet away from an officer with a
knife may present a different threat than a person six feet away with a gun”);
Garczynski v. Bradshaw, 573 F.3d 1158, 1169 n.3 (11th Cir. 2009) (recognizing
that less is required for an officer to reasonably perceive an immediate threat when
the suspect is armed “with a gun, rather than a knife”). Meanwhile, the other
officers were pursuing Whidden from behind, and Rigney, for his part, was
accompanied by a police dog. Based on the video evidence and the testimony in
the record, we are compelled to conclude that there was a material dispute of fact
as to whether reasonable officers would conclude that Whidden posed an
immediate threat to the safety of the officers or others.
We do not suggest, of course, that Rigney was required to “wait and hope
for the best” in this situation. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th
Cir. 2010) (quotation omitted and alteration adopted). We simply hold that there is
a genuine dispute of material fact that prevents us from deciding as a matter of law
that the use of force was objectively reasonable under the circumstances. At this
stage, we must take the facts in the light most favorable to the plaintiff; doing so,
we conclude that Rigney was not entitled to use deadly force against Whidden,
who was not suspected of committing any crime, was not taking any actions
suggesting that he would attack an officer, and was not armed with a firearm.
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To prevail, Clawson must also show that Rigney’s actions violated clearly
established law. Our case law sets out three pathways for a plaintiff to make this
showing. See Vinyard v. Wilson, 311 F.3d 1340, 1350–52 (11th Cir. 2002). For
starters, a plaintiff can point to a case with “materially similar” facts decided by the
Supreme Court, the Court of Appeals, or the highest court of the relevant state. Id.
at 1352. Or, a plaintiff can “show that a broader, clearly established principle
should control the novel facts in this situation.” Mercado, 407 F.3d at 1159. The
final option is to demonstrate that “the official’s conduct ‘was so far beyond the
hazy border between excessive and acceptable force that [the official] had to know
he was violating the Constitution even without caselaw on point.’” Priester v. City
of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quoting Smith v. Mattox,
127 F.3d 1416, 1419 (11th Cir. 1997)).
Clawson provides two cases from this Court that, she argues, found
constitutional violations on “materially similar” facts to this case. The first is
McKinney by McKinney v. DeKalb County, 997 F.2d 1440 (11th Cir. 1993). In
McKinney, three officers responded to a 911 call from a woman saying that her 16-
year-old son had locked himself in the bedroom with a butcher knife. Id. at 1442.
An officer knelt near McKinney and spoke to him for about ten minutes, before he
allegedly threw a small stick out toward another officer and began to get up from
his seated position. Id. This officer then fired five shots at McKinney, striking
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him three times and causing paralysis and the amputation of substantial part of his
right leg. Id. This Court denied qualified immunity to the officer who fired the
weapon, concluding that “[a]s alleged by the plaintiffs, . . . [McKinney] had
previously put down his knife and was merely shifting position, not threatening the
safety of any persons,” at the time he was shot. Id. at 1443. Because “the facts
[were] in dispute as to what happened that led [the officer] to fire his gun,” the
Court deemed summary judgment on qualified immunity inappropriate. Id.
Second, Clawson points to Mercado, 407 F.3d 1152. There, a woman called
911 to report that her husband, Mercado, was threatening to commit suicide. Id. at
1154. When officers arrived, Mercado was sitting on the kitchen floor with a
telephone cord wrapped around his neck, holding a knife pointed toward his heart.
Id. The officers ordered Mercado to drop the knife and he refused, without making
any threatening gestures or remarks; fifteen to thirty seconds later, an officer fired
a less-lethal weapon at him from a distance of about six feet away. Id. at 1155.
Mercado was struck in the head, fracturing his skull and causing brain injuries. Id.
A panel of this Court held that the officer was not entitled to qualified immunity
because Mercado “was not committing a crime, resisting arrest, or posing an
immediate threat to the officers at the time he was shot in the head.” Id. at 1157–
58. The Court expressly rejected the argument that “the use of force [was] justified
because suicidal subjects sometimes make erratic moves that can jeopardize the
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safety of the officers on the scene,” on the ground that there was “no indication
that he made any threatening moves toward the police.” Id. at 1157.
These two cases suffice to show the violation of a clearly established right,
again making all factual inferences in the plaintiff’s favor. Just like the plaintiffs
in these cases, Whidden was subjected to deadly force when he was neither
committing a crime nor posing an immediate threat to officer safety -- in fact, in
both of these prior cases, the victim was armed with a very similar weapon and
was substantially closer to the officers than Whidden was when he was shot and
killed. The parties in this case dispute the characterization of Whidden’s
movements prior to him being shot, as did the parties in McKinney. And like the
McKinney Court, we believe this dispute cannot be resolved on summary
judgment. Under the version of the facts most favorable to the plaintiffs, Whidden
made no threatening movements toward the officers and deadly force was
employed nonetheless. McKinney and Mercado clearly established that under
these facts in the summary judgment record, the use of force was excessive.1
1 To the extent Rigney relies on Garczynski v. Bradshaw, 573 F.3d 1158 (11th Cir. 2009), that case is readily distinguishable from this one. There, we upheld the grant of qualified immunity where officers had surrounded a suicidal man in a car and shot him when he disobeyed the officers’ commands by raising his gun and swinging it around toward one of the officers. Id. at 1168. Indeed, in that case, we expressly emphasized that the suspect was armed “with a gun, rather than a knife.” Id. at 1169 n.3.
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We affirm the district court’s denial of summary judgment on Clawson’s
excessive force claim. 2
AFFIRMED.
2 Rigney also asks this Court to reverse the district court’s denial of summary judgment on Clawson’s state-law wrongful death claim, arguing that this claim must fail if Rigney’s use of force was constitutionally reasonable. See Davis v. Williams, 451 F.3d 759, 768 (11th Cir. 2006). We have discretion to exercise jurisdiction “over an otherwise nonappealable district court decision, if we already have jurisdiction over another issue in the same case.” Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). “Under this doctrine, a federal appellate court may address nonappealable orders if they are ‘inextricably intertwined’ with an appealable decision or if ‘review of the former decision [is] necessary to ensure meaningful review of the latter.’” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir. 1999) (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 51 (1995)). Here, the appealable question whether Rigney is entitled to qualified immunity is not “inextricably intertwined” with the nonappealable decision to deny summary judgment on the state-law claim, and review of that determination is not “necessary to ensure meaningful review of” the qualified immunity issue. We therefore decline to exercise jurisdiction over the wrongful death claim and dismiss the appeal as to that issue.