Case: 17-12407 Date Filed: 04/23/2018 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12407 Non-Argument Calendar ________________________
D.C. Docket No. 3:15-cv-01277-AKK
TIFFANY BECKMAN, as the personal representative of the estate of Mitchell Campbell,
Plaintiff - Appellant,
versus
JOE HAMILTON,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(April 23, 2018)
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges. Case: 17-12407 Date Filed: 04/23/2018 Page: 2 of 14
PER CURIAM:
Plaintiff Tiffany Beckman -- as the personal representative of the estate of
Mitchell Campbell -- appeals the district court’s grant of summary judgment in
favor of Defendant Lauderdale County Deputy Sheriff Joe Hamilton in Plaintiff’s
42 U.S.C. § 1983 civil action. This action is about an active-shooter suspect shot
dead and alleged excessive force in violation of the Fourth and Fourteenth
Amendments. No reversible error has been shown; we affirm.
This case arises from the fatal shooting of Campbell. On the evening of 10
August 2013, Deputy Hamilton and three other officers responded to a 911 call.
The dispatch operator told Deputy Hamilton that the 911 caller (Andrea Whitaker)
had reported that her neighbor (Campbell) (1) was highly intoxicated, 1 (2) owned
several guns, (3) was yelling and threatening to kill the Whitaker family, (4) was
shooting repeatedly at the Whitaker home, and (5) had already struck the Whitaker
home with a bullet.
When officers arrived at the Whitaker home, two members of the Whitaker
family were hiding behind cars and warned the officers to take cover because
Campbell was shooting in their direction. The officers could hear Campbell -- who 1 Plaintiff, Campbell’s common law wife, was inside the couple’s home on the night of the shooting. Plaintiff says Campbell had been drinking that night but that Campbell was not slurring his speech and did not appear to her to be intoxicated. At the time of his death, Campbell had a blood alcohol level of .335 grams per 100 milliliters and also had traces of hydrocodone and marijuana in his system. 2 Case: 17-12407 Date Filed: 04/23/2018 Page: 3 of 14
was standing on the porch of his mobile home about 150 feet away -- yelling and
cussing. The officers also heard shots whizzing through the trees and believed
Campbell was firing in the direction of the Whitaker home.
The Whitakers reported to the officers that Campbell had threatened to kill
them and had been shooting at their house. After deciding to arrest Campbell, the
officers approached Campbell’s home on foot “under cover of darkness,” walking
from the road up Campbell’s long driveway. Out of concern for officer safety, the
officers attempted to avoid being seen by Campbell as they approached Campbell’s
home.
When the officers were about halfway up the driveway, they saw Campbell
standing on his porch holding a “long gun.” The officers saw and heard Campbell
fire 6 to 10 rounds in rapid succession in the direction of the Whitaker home. The
officers also heard Campbell yell something like “I’ll kill ya’ll.” The officers
continued their approach and hid behind a corner of Campbell’s home.
Meanwhile, Campbell continued to yell and cuss on and off and had loud music
playing at this time. It appeared to the officers then that Campbell was unaware of
their presence.
Shortly after reaching the house, Deputy Hamilton saw that Campbell had
come down onto the porch steps and appeared unarmed. Deputy Hamilton and
Deputy Brown -- who were both in full uniform -- then stepped out from behind
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the mobile home. The officers did not proclaim their presence. 2 Deputy Hamilton
stepped toward Campbell with his gun drawn. Campbell then turned away from
Deputy Hamilton, “stumbled” up a couple of steps onto the porch and bent down. 3
Deputy Hamilton -- who was then at or near the bottom of the porch steps -- saw
Campbell pick up a gun and then saw the barrel of the gun come up and then fall
so that it appeared to be pointing at Deputy Hamilton. For purposes of this appeal,
2 This supposed fact is disputed. Deputies Hamilton and Brown each contend that they yelled “Sheriff’s Office” loudly a couple of times. The other two officers on the scene and the Whitakers also reported that they heard the officers announce themselves. Plaintiff -- who was inside the mobile home at the pertinent time -- says she did not hear anyone yell “Sheriff’s Office.” Plaintiff concedes it was difficult to hear what was being said outside given the loud music and the sound of the air conditioner, but says she would have heard if someone had shouted “Sheriff’s Office.” For purposes of this appeal, we must view the facts in the light most favorable to Plaintiff and will assume that the officers did not announce themselves.
3 In response to Deputy Hamilton’s motion for summary judgment, Plaintiff argued that Campbell would have been unable to move up and down the porch steps given both his level of intoxication and that Campbell had sustained a recent knee injury and was in a full leg brace. The district court refused to accept Plaintiff’s assertion: unsupported by competent evidence. In particular, the district court relied on Plaintiff’s testimony that Campbell did not appear to her to be intoxicated and on Plaintiff’s testimony about the level of physical activity Campbell had engaged in earlier in the day. Deputy Hamilton testified expressly that, when he stepped out from behind the house, Campbell was outside the gate that separated the porch from the porch steps and was at least two steps down from the porch. Plaintiff does not purport to have witnessed the pertinent events. Nor does Plaintiff dispute that Campbell was in fact able physically to move up and down stairs: Plaintiff testified only that Campbell had to do so “carefully” given his knee injury. Because Plaintiff’s speculative, non-expert opinion about Campbell’s inability to use the stairs at the time of the shooting is both inconsistent with her other testimony about Campbell’s physical condition that day and fails to contradict directly Deputy Hamilton’s sworn testimony (including that Campbell “stumbled” up a couple of steps), Plaintiff has created no genuine issue of fact. The district court committed no error in rejecting Plaintiff’s subjective belief about Campbell’s ability to move up and down the porch steps. For background see Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002). 4 Case: 17-12407 Date Filed: 04/23/2018 Page: 5 of 14
we will assume that Campbell’s gun was not in fact aimed at Deputy Hamilton. 4
Deputy Hamilton -- believing Campbell was about to shoot him -- fired three
rounds in rapid succession, striking Campbell in the arm and chest.
Campbell stood for a moment, dropped his gun, and then fell. Deputy Jones
heard Campbell say something like “You startled me, You scared me, or Surprised
me.” About 2 to 4 seconds had elapsed from the time Deputies Hamilton and
Brown came around the corner of the house to the time Campbell was shot. After
the shooting, Deputy Hamilton asked Deputy Brown whether Campbell had a gun,
to which Deputy Brown replied “of course, yes.” When Plaintiff opened the door
to the porch shortly after the shooting, she heard Deputy Hamilton say “oh
s--t.” Campbell died of his wounds.
Plaintiff filed this civil action against Deputy Hamilton individually,
alleging that Deputy Hamilton used excessive force, in violation of the Fourth
Amendment, when he shot Campbell. The district court granted Deputy 4 Deputies Hamilton and Brown each testified that Campbell aimed his gun at Deputy Hamilton before Campbell was shot. Plaintiff’s ballistics expert opined that, based on the forensic evidence, he did not believe Campbell was pointing a gun at Deputy Hamilton at the time Campbell was shot. The ballistics expert also said “I can’t say whether he had a gun or whether he didn’t have a gun or whether he was pointing it or not pointing it or whether he was using it as a crutch. I have no way of knowing that.” The expert then reiterated his opinion that Campbell was pointing no gun at Deputy Hamilton when he was shot. On this record, we are doubtful that the ballistics expert’s testimony, in a legal sense, is sufficient to rebut the Deputies’ direct testimony about the pointing of the gun. But (even if we accept as true Plaintiff’s version of the facts) the manner in which Campbell was pointing the gun when he was shot is not dispositive. Our decision is the same whether Campbell -- when Deputy Hamilton made the decision to use deadly force -- was in fact pointing a gun at Deputy Hamilton, was in the process of doing so, or could be perceived reasonably as being in a position to do so speedily. 5 Case: 17-12407 Date Filed: 04/23/2018 Page: 6 of 14
Hamilton’s motion for summary judgment: a motion based on an assertion of
qualified immunity. The district court concluded that no constitutional violation
occurred.
We review de novo a district court’s grant of summary judgment, viewing
the evidence and all reasonable factual inferences in the light most favorable to the
nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
“Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation
omitted). To avoid summary judgment based on qualified immunity, Plaintiff must
show both that Deputy Hamilton violated a federal right and that the right was
already clearly established -- given the circumstances surrounding Hamilton --
when Deputy Hamilton acted. See id. “When properly applied, [qualified
immunity] protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).
A federal right is “clearly established” when “the contours of [the] right are
sufficiently clear that every reasonable official would have understood that what he
is doing violates that right.” Id. at 2083 (quotations and alteration omitted); see
also Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.
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1997) (en banc) (“For the law to be clearly established to the point that qualified
immunity does not apply, the law must have earlier been developed in such a
concrete and factually defined context to make it obvious to all reasonable
government actors, in the defendant’s place, that ‘what he is doing’ violates federal
law.”). “We do not require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (emphasis added); see also City & County of San
Francisco, Ca. v. Sheehan, 135 S. Ct. 1765, 1774 (2015); Plumhoff v. Rickard, 134
S. Ct. 2012, 2023 (2014); Stanton v. Sims, 134 S. Ct. 3, 5 (2013); al-Kidd, 131 S.
Ct. at 2084. “A plaintiff cannot rely on general, conclusory allegations or broad
legal truisms” to show that a right is clearly established. Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) (quotations omitted).
“Although suspects have a right to be free from force that is excessive, they
are not protected against a use of force that is necessary in the situation at hand.”
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotation omitted).
No precise or “rigid preconditions” exist for determining when an officer’s use of
deadly force is excessive. See Scott v. Harris, 127 S. Ct. 1769, 1777 (2007).
Instead, in deciding the merits of a claim of excessive force, the court must in each
case determine whether -- given all the facts and circumstances of a particular case
-- the force used was “reasonable” under the Fourth Amendment. Graham v.
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Connor, 109 S. Ct. 1865, 1871-72 (1989); see also Long v. Slaton, 508 F.3d 576,
580 (11th Cir. 2007) (“Because the test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application, we
must slosh our way through the factbound morass of reasonableness.” (quotations,
alterations, and citations omitted)).
“In determining the reasonableness of the force applied, we look at the fact
pattern from the perspective of a reasonable officer on the scene with knowledge of
the attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate.”
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). We consider,
among other things, “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.” Graham, 109 S.
Ct. at 1872.
We stress that “[t]he ‘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.” Id. And we must allow “for the fact that police
officers are often forced to make split-second judgments -- in circumstances that
are tense, uncertain, and rapidly evolving -- about the amount of force that is
necessary in a particular situation.” Id. “We are loath to second-guess the
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decisions made by police officers in the field.” Vaughan v. Cox, 343 F.3d 1323,
1331 (11th Cir. 2003).
The evidence, viewed in the light most favorable to Plaintiff/Campbell,
shows that Deputy Hamilton violated no constitutional right when he shot
Campbell; Deputy Hamilton’s conduct was objectively reasonable under the
circumstances. Deputy Hamilton had been told that Campbell was heavily
intoxicated, had threatened verbally to kill the Whitakers, was in possession of
several guns, was shooting actively at the Whitaker home which was occupied, and
had fired at least one shot that had already struck the Whitaker home. Later,
Deputy Hamilton and the other officers on the scene also observed Campbell
yelling, threatening to kill the Whitakers, and shooting repeatedly in the direction
of the Whitaker home.
Under the circumstances, probable cause existed to suspect Campbell of
having committed or of attempting to commit a serious offense. Then,
immediately after Deputies Hamilton and Brown -- both in full uniform and
Deputy Hamilton with his gun drawn -- stepped into view, Campbell retreated to
his porch and grabbed a gun. At that point, an objective officer in Deputy
Hamilton’s position could have believed reasonably that Campbell was not only
attempting to evade arrest but that Campbell posed an immediate threat to the
safety of the officers. Faced with a “tense, uncertain, and rapidly evolving”
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situation, Deputy Hamilton made a split-second decision to shoot Campbell to
avoid the risk of serious injury.
Plaintiff argues that Deputy Hamilton acted unreasonably by not announcing
himself and by taking Campbell by surprise. First, in the light of Campbell’s
erratic and violent conduct and his intoxicated state, an objectively reasonable
officer could have concluded it was necessary -- for officer safety -- to approach
Campbell cautiously and without being seen or heard. We have recognized that
“[s]hock and surprise may be proper and useful tools in avoiding unnecessary
injury to everyone involved when dealing with potentially violent suspects.”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003); cf.
Catlin v. City of Wheaton, 574 F.3d 361, 368 (7th Cir. 2009) (plainclothes officers
acted reasonably in taking suspect by surprise and in throwing him to the ground
without first identifying themselves because the officers believed (albeit
mistakenly) that the suspect was armed and likely to resist arrest and, thus, “that
they needed to use the element of surprise to their advantage” to minimize the risk
of serious injury). In the light of the circumstances, that Campbell may have been
surprised by Deputy Hamilton’s presence at Campbell’s house does not render the
use of deadly force unreasonable, particularly given that Campbell immediately got
a gun.
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Further, even if the officers failed to declare themselves verbally, that both
Deputies Hamilton and Brown were in full uniform when they stepped into view
from behind Campbell’s home is undisputed. In the light of all the surrounding
circumstances -- including the officers’ dress and that, upon the officers’ arrival,
Campbell acted by turning and retreating to the porch -- an objectively reasonable
officer in Deputy Hamilton’s position could have believed that Campbell was in
fact aware of the officers’ presence. Cf. Thomas v. Durastanti, 607 F.3d 655, 667
(10th Cir. 2010) (concluding a plainclothes officer’s failure to identify himself was
reasonable under the circumstances, where a state trooper’s marked patrol car, with
its emergency lights on, was also at the scene and where the suspects appeared to
comply initially with the trooper’s order to get back in the car).
In support of her contention that Campbell was shot while still unaware of
the officers’ presence, Plaintiff also relies on Campbell’s utterance about being
“startled,” “scared,” or “surprised.” Campbell’s utterance, however, is not
inconsistent with Deputy Hamilton’s testimony and creates no genuine issue of fact
about whether Campbell saw the officers before he was shot. Besides, whether
Campbell was meaningfully aware of the police before he was shot is not by itself
critically important in this case, considering all the circumstances.
In the light of the rapidly evolving circumstances -- only 2 to 4 seconds
having elapsed from when Deputies Hamilton and Brown stepped out from around
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the house to when Campbell was shot -- we cannot say it was constitutionally
unreasonable for Deputy Hamilton to use deadly force without first identifying
himself verbally or issuing a verbal warning that deadly force would be used. See
Carr v. Tatangelo, 338 F.3d 1259, 1269, 1272-73 (11th Cir. 2003) (affirming the
grant of qualified immunity where officers -- without having identified themselves,
without having made themselves visible, and without having issued a force
warning -- shot suspect who the officers believed reasonably, but mistakenly, was
pointing a gun in the officers’ direction and was chambering a bullet); see also
Molina-Gomes v. Welinski, 676 F.3d 1149, 1153 (8th Cir. 2012) (affirming the
grant of qualified immunity in a police shooting case, explaining that an
undercover officer’s use of force was constitutional -- even if the officers failed to
identify themselves -- “given the fast evolving circumstances and the officers’
reasonable belief that [the suspect] posed a serious threat to others.”).
Plaintiff also contends that Deputy Hamilton’s use of deadly force was
unreasonable given that Campbell’s gun was not aimed at Deputy Hamilton when
Campbell was shot. Plaintiff does not dispute, however, that Campbell was
holding a gun when he was shot -- a gun that Deputy Hamilton says Campbell
retrieved immediately after Deputies Hamilton and Brown stepped into view.
Given that Campbell had been actively shooting at the Whitaker home (a home
with people in and around it) moments before, had expressly threatened to kill
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people, and had again armed himself, an objective officer under the circumstances
could have believed reasonably that Campbell posed a threat of imminent danger
even if Campbell’s gun was not already aimed at Deputy Hamilton. Cf. Jean-
Baptiste, 627 F.3d at 821 (“Regardless of whether Jean-Baptiste had drawn his
gun, Jean-Baptiste’s gun was available for ready use, and [the officer] was not
required to wait ‘and hope[] for the best.’”). “[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.” Long v. Slaton, 508 F.3d 576, 581 (11th Cir.
2007) (concluding the use of deadly force was reasonable, even though other less-
lethal means of preventing the suspect’s escape may have existed).
The reasonableness of force used is not judged “with 20/20 vision of
hindsight.” See Graham, 109 S. Ct. at 1872. In this case, because an objective
policeman in Deputy Hamilton’s place could have believed reasonably that
Campbell (who was armed) was aiming -- or in the process of aiming -- a gun
toward him, Deputy Hamilton is entitled to qualified immunity even if mistaken.
See Penley v. Weippert, 605 F.3d 843, 851, 854 (11th Cir. 2010) (concluding that
no Fourth Amendment violation occurred when officer believed reasonably that
the suspect -- who was armed with a realistic-looking toy gun -- posed a threat of
serious physical harm to the officers and to nearby students); Garczynski v.
Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009) (concluding officer was entitled
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to qualified immunity when decision to shoot suspect was based in part on a
mistaken, but reasonable, belief that the suspect was about to drive away).
In the light of the circumstances, Deputy Hamilton’s use of deadly force was
reasonable in the Fourth Amendment sense: no constitutional violation. Cf. Jean-
Baptiste, 627 F.3d at 821 (officer’s use of deadly force without warning was
constitutionally reasonable when a suspect of violent crimes who had attempted to
flee confronted the officer while suspect was holding a gun). In addition, we
conclude separately that the law was not clearly established at the time of the
shooting in 2013 that Deputy Hamilton’s act (given the circumstances) violated
federal law. 5 Deputy Hamilton is personally entitled to immunity.
AFFIRMED.
5 Because the Constitution allows reasonable force and prohibits only unreasonable force, the question of unconstitutional force is a fact-sensitive one, given all the circumstances. In such a fact-sensitive approach, predicting in advance the outcome in particular cases is very often difficult because so many different factors must be weighed in the balance. Slight differences in circumstances can be important, making somewhat similar cases have different results. Furthermore, Plaintiff has cited no cases -- and we have found none -- that have decided that an officer acted unconstitutionally unreasonably when he used deadly force against a free suspect who -- in a short time before the shooting of the suspect -- had shot repeatedly toward a building with several inhabitants, who had threatened verbally to kill more than one person, and who still had a gun in hand when he was shot. 14