Amy Young v. Gary S. Borders , 850 F.3d 1274 ( 2017 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14673
________________________
D.C. Docket No. 5:13-cv-00113-ACC-PRL
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,
versus
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
________________________
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Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.
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.
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HULL, Circuit Judge, joined by TJOFLAT, Circuit Judge, concurring in the denial
of rehearing 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published, and thus non-precedential, decision.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
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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.
I. FACTUAL BACKGROUND
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
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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
1
The only defendant sued in his individual capacity is Deputy Sylvester. None of the
other officers with him were sued. Because the dissents focus on the claims against defendant
Sylvester, we do too.
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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.”
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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
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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.
(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
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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.
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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.’”
2
Plaintiff Mauck’s testimony is consistent with Deputy Sylvester, who said: “I knocked
on the door in two separate sets of three knocks each, waiting between each set for a response.”
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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
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Sylvester shot and killed Mr. Scott, an innocent young man who was not the
motorcyclist.
II. 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 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
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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
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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
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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.
III. QUALIFIED IMMUNITY
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
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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
3
When determining whether the unlawfulness of an officer’s actions was already clearly
established, we look to the state of the law on the date of the challenged conduct. Hope v.
Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002); see also Fish v. Brown, ___ F.3d ___,
___, No. 15-12348, 2016 WL 5746264, at *6 (11th Cir. Oct. 3, 2016).
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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
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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 particularized and similar factual
circumstances in order to create “clearly established” federal law.4
As the Supreme Court explained decades ago, “the clearly established law
must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)). For that reason, “[a]
clearly established right is one that is ‘sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’”
4
There is only one exception “to the rule requiring particularized case law to establish
clearly the law in excessive force cases.” Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000). That exception is an “obvious clarity” case where the official’s conduct is “so
egregious that a constitutional right was clearly violated, even in the total absence of case law.”
Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013) (quotation marks omitted). In such a
case, “the official’s conduct lies so obviously at the very core of what the Fourth Amendment
prohibits that the unlawfulness of the conduct was readily apparent to the official,
notwithstanding the lack of caselaw.” Priester, 208 F.3d at 926. “Our case law has made clear
that ‘obvious clarity’ cases will be rare,” and the plaintiffs on appeal did not argue this was an
“obvious clarity” case. Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011) (en banc).
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Mullenix, 57 U.S. at ___, 136 S. Ct. at 308 (emphasis added) (quoting Reichle v.
Howards, 566 U.S. ___, ___, 132 S. Ct. 2088, 2093 (2012)); see also Terrell v.
Smith, 668 F.3d 1244, 1250 (11th Cir. 2012).
The Supreme Court has also explained: “We do not require a case directly
on point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 57 U.S. at ___, 136 S. Ct. at 308 (quotation
marks omitted). Although identical facts are not required, there still must be
particularized facts that made clear to Deputy Sylvester that his force action was
unlawful. “This exacting standard ‘gives government officials breathing room to
make reasonable but mistaken judgments’ by ‘protect[ing] all but the plainly
incompetent or those who knowingly violate the law.’” Sheehan, 575 U.S. at ___,
135 S. Ct. at 1774 (quoting Ashcroft, 563 U.S. at 743, 131 S. Ct. at 2085).
Again, qualified immunity may be denied only when the officers have “fair
and clear warning of what the Constitution requires.” Sheehan, 575 U.S. at ___,
135 S. Ct. at 1778. Even before White, this Court recognized that this “critical
inquiry” about “fair warning” “must be undertaken in light of the specific context
of the case, not as a broad general proposition.” Coffin v. Brandau, 642 F.3d 999,
1013 (11th Cir. 2011) (en banc) (quotation marks omitted). “Such specificity is
especially important in the Fourth Amendment context, where . . . it is sometimes
difficult for an officer to determine how the relevant legal doctrine, here excessive
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force, will apply to the factual situation the officer confronts.” Mullenix, 57 U.S.
at ___, 136 S. Ct. at 308 (alteration accepted) (quotation marks omitted).
B. No Clearly Established Federal Law Gave Fair Notice.
Here, the panel was required to find “no reversible error” because there is no
prior case with facts remotely similar, much less particularized facts similar, to the
facts in this case. More importantly, even the contours of the law in this type of
unusual factual situation were not sufficiently clear such that a reasonable officer,
in Defendant Sylvester’s situation, would understand that what he is doing violates
clearly established federal law.5
In its clearly established analysis, the dissent relies on our decisions in
Lundgren v. McDaniel, 814 F.2d 600, 602 (11th Cir. 1987) and Menuel v. City of
Atlanta, 25 F.3d 990 (11th Cir. 1994). The dissent claims that these two cases
establish a “straightforward line” that police cannot shoot people merely because
they have a gun in their own home. Martin, J. dissenting at 15. Of course, that
ignores the critical events that led Deputy Sylvester to the door of Apartment 114
and what happened when the door opened. The dissent also says that Lundgren
and Menuel involved “circumstances closely resembling this case.” Id. at 12. This
is inaccurate because those cases have materially different facts.
5
As to qualified immunity, the defendant has the burden to show he was acting within his
discretionary authority. It is undisputed that Deputy Sylvester acted within his discretionary
authority. Therefore, the burden shifted to the plaintiffs to demonstrate that Sylvester violated
the plaintiffs’ clearly established constitutional rights. Carter v. Butts Cty., 821 F.3d 1310, 1319
(11th Cir. 2016).
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In Lundgren, law enforcement officers walked by a store and saw a broken
window. Suspecting a burglary, they entered the store without announcing
themselves. 814 F.2d at 602. In Lundgren, unlike this case, there was no advance
report that a burglary suspect in the store might have a gun, much less an advance
report of a speeding motorcyclist involved in an assault and battery with a loaded
firearm. Id. Upon entry, the officers in Lundgren instantaneously shot the
storeowner who, after hearing the officers in his store, rose up from behind his
desk where he had been sleeping. Id.
In Lundgren, there was even conflicting testimony about whether the
storeowner had a gun. The officers testified that they saw a man with a pistol in
his hands. The storeowner’s wife, who was with him, gave conflicting testimony
about whether or not the storeowner had reached for his gun but said that the
storeowner “never really had a chance to get up off the floor.” Id. Indeed, the
forensic evidence showed that the bullet that struck the storeowner in the head had
first passed through the desk. Id.
This Court reviewed that conflicting evidence from the Lundgren trial and
concluded that, based on the evidence, the “jury could have reasonably believed
that the officers were neither threatened by a weapon, nor appeared to be
threatened by a weapon, nor were fired upon, but rather that the officers without
provocation shot at a nondangerous suspect.” Id. at 603. We thus held that
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shooting a non-threatening suspect was an unreasonable seizure that was clearly
established, and we denied qualified immunity. Id.
No jury is needed here to decide if a storeowner reached for a gun or not. It
is undisputed Mr. Scott held a gun when he opened the door and was in full view
of Deputy Sylvester. The officers here knocked on the door first and did not enter
into a store unannounced. The officers also had reason to think that the
motorcyclist may be inside Apartment 114 and may be armed and dangerous. This
reasonable suspicion was seemingly verified when Mr. Scott opened the door with
a gun in his hand and began moving in a manner reasonably perceived as an
attempt to take cover to fire. If anything, Lundgren is inapposite here.
The dissent’s second case is Menuel, where officers shot a girl after she fired
at them. 6 25 F.3d at 993. Given that the girl shot first, this Court concluded that
the officers’ actions were objectively reasonable and that no Fourth Amendment
violation occurred. Id. at 997. While the Menuel officers took fire before
shooting, nothing in Menuel states, much less holds, that officers must wait to be
fired upon before using deadly force. Menuel provides little guidance on whether
an officer may reasonably believe the use of deadly force is justified when the
6
In Menuel, the girl’s family called 911, reporting that the girl was behaving violently
and erratically. 25 F.3d at 991. The girl locked herself in the bedroom after attacking several
officers with a butcher knife. Id. at 992. When the officers later entered the bedroom the girl
shot at them with a handgun, which generated a muzzle flash. Id. The officers then fired eight
shots, which killed her. Id.
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person reportedly has been in a prior armed altercation, has a gun, and moves as if
to take cover to fire.
Taken together, what these two prior cases (cited by the dissent) do illustrate
is the wide variety of difficult and complex facts in excessive force cases. These
two cases, however, do not closely, or even similarly, resemble the facts of this
case, which means qualified immunity protects Deputy Sylvester. See Mullenix,
57 U.S. at ___, 136 S. Ct. at 312 (“Even accepting that these circumstances fall
somewhere between the two sets of cases . . . qualified immunity protects actions
in the ‘hazy border between excessive and acceptable force.’”) (quoting Brosseau
v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004)). Nor do these two cases
put Sylvester on “fair notice” that the use of deadly force in this factual situation
violated the Fourth Amendment. This is a difficult and unique case that is not
answered by either our precedent or Supreme Court precedent. To find Sylvester’s
use of force objectively unreasonable, that conclusion must “follow immediately”
from the principles of our past precedents. Mullenix, 57 U.S. at ___, 136 S. Ct. at
309. That is not the case here.
The panel’s unpublished, non-precedential affirmance of the district court’s
qualified immunity ruling is not incongruous with this Circuit’s precedent in
excessive force cases. En banc consideration is thus not necessary to “maintain
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uniformity of the court’s decisions” under Federal Rule of Appellate Procedure 35.
Fed. R. App. P. 35(a)(1).
IV. “SEARCH” THEORY OF FOURTH AMENDMENT LIABILITY
Even if qualified immunity attaches to the excessive force claim, the dissent
alternatively argues that the plaintiffs’ “search” claim should go to trial. That
search claim alleges that Deputy Sylvester’s conduct before Mr. Scott opened the
door amounted to a “warrantless raid and search” of Mr. Scott’s home that violated
the Fourth Amendment.
Recognizing the “sanctity of the home” from government intrusion, the
district court determined that Deputy Sylvester’s approach to the door and
knocking were lawful under the knock and talk rule. Under Supreme Court
precedent, the knock and talk rule permits the police to enter onto private land and
knock on a citizen’s door for legitimate police purposes, such as gathering
information in an investigation. See Florida v. Jardines, 569 U.S. ___, 133 S. Ct.
1409 (2013). We need not decide whether Deputy Sylvester’s conduct before the
door opened violated the Constitution because no clearly established federal law
gave Sylvester fair and clear notice that his conduct constituted an illegal search.
A. Warrantless Entry into the Curtilage of a Home
In this case, Deputy Sylvester stood on the ground immediately surrounding
the stoop to Apartment 114 as he knocked on the front door. Under a Fourth
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Amendment analysis, Sylvester entered the curtilage of Mr. Scott’s home without a
warrant, and his conduct at the door took place in a constitutionally protected area.
Jardines, 569 U.S. at ___, 133 S. Ct. at 1415 (instructing that the area “surrounding
and associated with the home”—the curtilage—is “part of the home itself for
Fourth Amendment purposes” and that a “front porch is the classic exemplar of an
area . . . to which the activity of home life extends”). The question becomes
whether his conduct fell within the knock and talk exception to a warrantless
search. We outline that exception and how the district court applied it.
B. Knock and Talk Exception
In Florida v. Jardines, the Supreme Court reaffirmed the knock and talk
exception, stating that a police officer “not armed with a warrant” still enjoys an
implied license to knock on an individual’s door in order to gather information
related to the officer’s investigation. Id. at ___, 133 S. Ct. at 1416; see also
Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 1862 (2011) (stating that a
police officer “not armed with a warrant” may approach a home and knock). “This
implicit license typically permits the visitor to approach the home by the front
path, knock promptly, wait briefly to be received, and then (absent invitation to
linger longer) leave.” Jardines, 569 at ___, 133 S. Ct. at 1415. “The mere purpose
of discovering information in the course of engaging in that permitted conduct
does not cause it to violate the Fourth Amendment.” Id. at ___ n.4, 133 S. Ct. at
25
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1416 n.4 (quotation marks and citations omitted). Thus, “it is not a Fourth
Amendment search to approach the home in order to speak with the occupant.” Id.
The scope of this knock and talk exception is limited in two respects. United
States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015), cert. denied, 136 S. Ct.
857 (2016). First, “the exception is geographically limited to the front door or a
‘minor departure’ from it.” Id. Second, the exception does not apply where the
objective purpose of the officer’s behavior is “to do nothing but conduct a search.”
Jardines, 569 U.S. at ___ n.4, 133 S. Ct. at 1416 n.4.
In Jardines, the police officer did not approach and knock on any door. Id.
at ___, 133 S. Ct. at 1413. Rather, based on a tip about marijuana growing inside
the home, the officer went to the home to obtain evidence. To do that, the officer
brought a drug-sniffing dog to the defendant’s home and had it sniff around the
front porch and the base of the front door, where the dog indicated a positive alert
for narcotics. Id.
The Jardines officer applied for and received a search warrant based on the
evidence of the dog’s positive alert. Id. The problem with the officer’s conduct
was that taking a trained drug-sniffing police dog to explore the porch and area
around the home to obtain the incriminating evidence “objectively reveal[ed] a
purpose to conduct a search” of the porch. Id. at ___, 133 S. Ct. at 1417. The
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officers did “nothing but conduct a search” and thus violated the Fourth
Amendment. Id. at ___, ___ n.4, 133 S. Ct. at 1416-18, 1416 n.4.
C. Approaching and Knocking on 114’s Door
In stark contrast to Jardines, the officers here did not snoop around the
house, peer into the windows, or take any other steps to collect evidence. Instead,
Deputy Sylvester approached the plaintiffs’ apartment, stayed at the front door, and
knocked. Sylvester did not stand on the steps or the stoop, but rather stood on the
ground to the left of the door. He knocked to seek information about and locate the
owner, albeit possibly armed, of the still-hot motorcycle parked out front by
talking to the residents of Apartment 114. The district court considered all of the
conduct at the door, reasoning as follows:
Although the officers in this case positioned themselves in front of the
only exit to Apartment 114 with their guns drawn, the LCSO officers
did not order Scott or Mauck out of their apartment. As discussed
previously, there is no evidence to show that Scott or Mauck even
knew that the officers had their guns drawn. Further, there is no
evidence presented . . . to show that the officers would not have
permitted Scott or Mauck to stay in Apartment 114; to the contrary,
the unrebutted testimony in this case is that the officers would have
been required to leave if nobody answered the door. The only activity
outside of the apartment that Scott and Mauck knew of was that
someone had knocked on their door loudly. As discussed above, this
is not such a “show of authority” that would permit Scott and Mauck
to believe they would not have been permitted to stay inside their
apartment.
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Young, 2014 WL 11444072, at *11. The district court thus determined that
Sylvester’s conduct before the door opened fell squarely within the knock and talk
exception and did not violate the Fourth Amendment. 7
D. No Clearly Established Federal Law
Once again, we need not decide the constitutional violation issue. At a
minimum, no clearly established federal law on July 15, 2012 gave fair and clear
notice to Sylvester that his conduct before the door opened was an illegal search.
“Our Court looks only to binding precedent—cases from the United States
Supreme Court, the Eleventh Circuit, and the highest court of the state under which
the claim arose—to determine whether the right in question was clearly established
at the time of the violation.” Coffin, 642 F.3d at 1013. In doing so we also only
look at the state of the law on the date of the challenged conduct. Hope, 536 U.S.
at 741, 122 S. Ct. at 2516. “Qualified immunity shields an officer from suit when
she makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances she confronted.” Brosseau,
543 U.S. at 198, 125 S. Ct. at 599. The dissent does not cite any Supreme Court,
binding Eleventh Circuit, or Florida Supreme Court case that would have put
7
To be clear, the events that occurred after the door opened are properly analyzed under
the excessive force category of Fourth Amendment seizure claims, and the plaintiffs presented a
claim under that theory, albeit one that ultimately fails due to qualified immunity. The officers’
actions prior to the door opening are analyzed under the scope of a permissible knock and talk.
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Deputy Sylvester on fair and clear notice that the time and manner of his approach
on July 15, 2015 was illegal.
Instead, relying on cases from other circuits, the dissent argues that it is
clearly established federal law that Deputy Sylvester’s behavior was “a raid” and
exceeded the scope of the permissible knock and talk exception because it was
1:30 a.m., he unholstered his weapon, and he knocked so loudly. In those cases,
however, the officers made warrantless entries using a coercive show of force. In
contrast, the officers’ actions here are dissimilar and do not rise to the level of a
“show of force” found impermissible in those other cases.
For example, in United States v. Gomez-Moreno, the officers attempted a
“knock and talk” at a suspected stash house for illegal aliens. 479 F.3d 350, 352-
53 (5th Cir. 2007).8 Ten to twelve armed officers drove to the residence, formed
two groups (one for each of the two houses at the location), surrounded both
houses, and had a helicopter hovering overhead. Id. at 352, 355. At the front
house, no one answered, so the officers checked the doorknob to see if it would
open. Simultaneously at the back house, officers announced their presence and
demanded that the occupants open the door. Id. The Fifth Circuit concluded that
8
The Fifth Circuit has acknowledged that Gomez-Moreno was overruled in some respects
by Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849 (2011). United States v. Montgomery, 777
F.3d 269, 273 (5th Cir. 2015).
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the knock and talk strategy was unreasonable because “the officers made a show of
force, demanded entrance, and raided the residence.” Id. at 356.
In contrast, Deputy Sylvester did not even check the door knob, did not
demand the door be opened, and did not have a helicopter hovering overhead. In
addition, the lateness of the knock on Mr. Scott’s door did not make Sylvester’s
actions “a raid” because the lights were on in the apartment. See Walker, 799 F.3d
at 1364 (finding that, at five in the morning before sunrise, the officers were not
unreasonable in approaching a car parked in the carport because the lights in the
house and in the car were both on). The dissent does not dispute the lights were on
and even points out that the occupants were still up and playing video games.
Rather, the dissent claims that Mr. Scott was obligated to open the door
because “the officer kept slamming on it.” Martin, J. dissenting at 21. A handful
of knocks, without any verbal demand, does not create a non-consensual
“obligation” to answer the door, and the undisputed facts here indicate that
Sylvester had his gun behind his leg when he knocked on the door. Sylvester’s
gun was not pointed at the door or the house before the door opened.
In any event, cases from other circuits do not create clearly established
federal law for this circuit. Coffin, 642 F.3d at 1013.
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V. CONCLUSION
In conducting its qualified immunity analysis, the district court’s decision
viewed the facts in the light most favorable to the plaintiffs. When there were
disputes in the record, it accepted the plaintiffs’ version of these tragic facts as
true. The district court thoroughly and diligently reviewed the facts and legal
issues in this case. At a minimum, the district court committed “no reversible
error” because no clearly established federal law gave clear and fair notice that
Deputy Sylvester’s conduct was unlawful. The panel’s affirmance is not en banc
worthy under Federal Rule of Appellate Procedure 35.
Finally, it is important to stress that orders denying rehearing en banc, even
this published one, have no binding or precedential value. We have explained why
before, stating:
“[W]hile [we] would like to think that [our] judicial colleagues chose
not to vote this case en banc because they opined that the panel
reached a correct result for the right reasons, [we are] well aware that
some [voting against rehearing en banc] may have disagreed with the
panel but knew that the opinion would be non-precedential. A denial
of en banc rehearing is similar to a denial of certiorari by the Supreme
Court; it communicates little, if anything, about the position of the
court or the issues presented. Indeed, although [the panel members]
have outlined the reasoning underlying our . . . views of the court’s
denial of en banc rehearing in this particular case, our opinions in this
regard, like [the dissent’s and] the court’s decision to deny rehearing,
have no binding or precedential value.”
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Riley v. Camp, 130 F.3d 958, 983 n.7 (11th Cir. 1997) (Birch, J., concurring in the
denial of rehearing en banc). Accordingly, nothing in this order is binding or has
precedential value.9
9
One dissent laments that our panel decision may encourage other law enforcement
officers in similar conduct, but, respectfully, our summary, non-published panel opinion here
does not do that.
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MARTIN, Circuit Judge, with whom WILSON, ROSENBAUM and JILL
PRYOR, Circuit Judges, join, dissenting from the denial of rehearing en banc:
This case arises out of the fatal police shooting of an innocent young man.
Andrew Scott and his girlfriend were in their home playing video games late one
night when police arrived outside. The police had no warrant and no reason to
suspect Mr. Scott or his girlfriend had committed any crime. The officers
acknowledge both of these things to be true. Even so, the police tactically
surrounded the home’s only exit, drew their guns, repeatedly slammed on the door
without identifying themselves as law enforcement, and then shot and killed Mr.
Scott when he opened the door, as he was stepping back into his home. The
District Court rejected the 42 U.S.C. § 1983 claims brought by Mr. Scott’s
bereaved parents and girlfriend, holding that the police acted reasonably. A panel
of this Court affirmed in a three-sentence, unpublished opinion, and now a
majority of this Court’s judges have voted not to rehear the case en banc. I dissent
from that decision.
There are problems with the holdings that the panel summarily affirmed. I
will turn my attention to two. First, under no standard was it reasonable for the
police to kill Mr. Scott when he answered the knock at the door to his home. He
was not suspected of any crime (much less a violent crime) and he was standing
inside his own house without threatening them. Second, the police were not
engaged in a permissible “knock and talk” when they killed Mr. Scott. Their
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aggressive tactics crossed far over the line from a consensual visit into a
warrantless raid. When it upheld these rulings by the District Court, the panel (and
now a majority of this Court) gave a pass to dangerous, unconstitutional police
actions in a way that makes it more likely that tragic police shootings will continue
to occur.
I.
While two members of the panel have now written extensively about why
Mr. Scott’s survivors should be barred from presenting their case to a jury, the
panel opinion set forth no facts about this case. Now that we are reviewing the
record, it reveals hotly disputed facts that are central to deciding whether qualified
immunity protects these officers from facing a jury in a civil trial. See Morton v.
Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013). Viewed in the light most
favorable to the plaintiffs, see Perez v. Suszczynski, 809 F.3d 1213, 1217 (11th
Cir. 2016), the material facts are as follows: 1
Deputy Richard Sylvester, of the Lake County Sheriff’s Office in Florida,
saw a motorcycle speeding down a street one night and started after it in his patrol
car. Because the motorcycle had a head start, Deputy Sylvester quickly realized
1
Although the concurrence to the denial of rehearing en banc says that Judge Jill Pryor
and I have “omit[ted] key, undisputed facts,” Conc. Op. at 2, Judge Hull’s account of the facts
almost exactly echoes my account. The fact that we draw such divergent conclusions from our
similar understanding of the facts highlights the need to have a jury decide this case. The
concurrence does point to a few additional bits of information, some of which it labels as
“undisputed facts.” I don’t view them as undisputed, but even accepting the concurrence’s facts,
this case cries out for a jury.
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that his car was never going to catch up, and he abandoned pursuit when the
motorcycle pulled out of sight. Deputy Sylvester never identified the speeding
motorcycle, or even saw what color it was.
After the failed chase, the police dispatcher speculated with Deputy
Sylvester that the speeding motorcycle “might possibly” have been the same one
used by an armed assault and battery suspect in a different area, about five miles
away. This possible connection between the two motorcycles was not then
investigated. The officers just assumed they were one and the same. Later,
another officer radioed Deputy Sylvester and speculated that he had found “the”
motorcycle at Blueberry Hill Apartments. 2 The officer noted that the motorcycle
at Blueberry Hill Apartments was hot on this July night, which he took to mean
that it had been driven recently.
Deputy Sylvester then drove to Blueberry Hill Apartments. After arriving,
he saw a motorcycle parked in the apartment complex’s shared parking lot.3
2
From a reasonable officer’s perspective at this point, there were as many as three
different motorcycles in play: (1) the speeding motorcycle that Deputy Sylvester never identified
during his failed pursuit; (2) the motorcycle used by an assault and battery suspect in another
area and reported secondhand from the Leesburg Police Department; and (3) the motorcycle at
Blueberry Hill Apartments. The concurrence suggests that the officers reasonably assumed they
were all the same. Given that there were 12,143 motorcycles registered just in Lake County,
Florida, at the time Mr. Scott was killed, this assumption was questionable. See Florida
Highway and Motor Vehicles Registration Statistics, July 1, 2012,
http://flhsmv.gov/html/reports_and_statistics/CVR/12-13/CVR-07-2012.pdf.
3
The concurrence cites as an undisputed fact that Deputy Sylvester “positively
identif[ied]” the motorcycle at Blueberry Hill Apartments as the speeding motorcycle from his
failed pursuit. Conc. Op. at 5. However, this conflicts with Deputy Sylvester’s sworn testimony
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Deputy Sylvester ran a tag search on the motorcycle and found that it was
registered to an address in a different city, as was a car parked next to it. The tag
search revealed no incriminating information. The time was around 1:30 a.m., and
there were four officers on the scene.
The officers decided to “knock on doors at the complex and try to gather
information.” They chose to start with Apartment 114 because a light was on
inside and it was located near where the motorcycle was parked in the shared lot. 4
The officers had no warrant, no idea which apartment the motorcyclist might be in
(if any), 5 and no reason to suspect the occupants of Apartment 114 of any crime.
that he never saw the speeding motorcycle’s make, model, or color. Where there are conflicting
accounts, we construe the facts in the light most favorable to the non-movant (here, the
plaintiffs). Perez, 809 F.3d at 1217. We must therefore reject Deputy Sylvester’s claim of
positive identification.
4
At least one of the officers knew that the parking spots at Blueberry Hill Apartments
were not assigned, but were instead shared throughout the whole complex. Anyone could park
anywhere.
The concurrence says “Deputy Sylvester observed a fresh footprint in the sand next to the
motorcycle leading toward [Apartment] 114.” Conc. Op. at 6. Once again, this is not an
undisputed fact. None of the other three officers on the scene backed up his story of a “fresh
footprint.” When Corporal McDaniel was specifically asked if he saw anything that connected
the motorcycle with Apartment 114, he said he usually pays attention to tracking clues like “an
obvious footprint,” but reported none here. Curiously, Judge Hull acknowledges that “[o]ther
officers do not recall seeing a footprint” but lists the purported footprint in her section of
“undisputed” facts anyway. Conc. Op. at 6. We are not permitted to construe this equivocal and
unsupported testimony against Mr. Scott. Even if we could, a footprint would suggest only that
someone, at some time, walked from the shared parking lot toward the building shared by
Apartment 114. What to infer from that is something a jury should decide.
5
The concurrence includes one of several photographs from the record on summary
judgment for the apparent purpose of supporting the connection the officers made between the
motorcycle and Mr. Young’s apartment. Conc. Op. at 6. But this is fact finding. The extent to
which any photograph may or may not support the police officers’ reasons for approaching Mr.
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Indeed, they later acknowledged that “the occupants of Apartment [114] were not
suspects.” Meanwhile, inside Apartment 114, Mr. Scott and his girlfriend,
Miranda Mauck, were playing video games in their pajamas. Neither of them
owned a motorcycle. They were just living their lives in the privacy of their home.
The four police officers assumed “tactical positions” surrounding the only
door to Apartment 114. Their guns were all drawn and ready to shoot. Deputy
Sylvester stood to the left of the door, up against the exterior wall, while a second
officer stood in a mirrored position to the right. The two other officers stood
behind a nearby privacy fence. None of the officers stood on the raised concrete
slab in front of the door, where a visitor would stand. None of the patrol cars
displayed emergency lights, and the area around Apartment 114 was dark enough
that two of the officers used flashlights.
Deputy Sylvester, holding his drawn gun by his leg, pounded repeatedly on
the door of Apartment 114 with his other hand. Neighbors hundreds of feet away
described the knocks as “very loud,” as did Ms. Mauck.6 One officer testified that
the knocks sounded loud because the door was hollow. The officers never
Scott’s home should be resolved by a jury. And in any event, wherever this motorcycle was
parked, it hardly justified the killing of Mr. Scott.
6
Deputy Sylvester says that he knocked “in a normal manner” because he was concerned
about waking children inside. However, Ms. Mauck, neighbors, and a fellow officer stated that
the knocks were loud, so we must once again discredit a contradicted claim of Deputy Sylvester.
His statement also leads one to wonder why Deputy Sylvester readied himself for a shootout if
he thought children were inside.
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identified themselves as law enforcement. Drawn outside by this late-night
commotion, a neighbor told the officers that the motorcycle’s owner “lives over
there,” gesturing toward a different building. Deputy Sylvester heard this but
apparently did not see the gesture.
Inside Apartment 114, Mr. Scott and Ms. Mauck were startled by this
anonymous pounding on their door at 1:30 a.m. They went to their bedroom to
change out of their pajamas, and when the pounding continued, Mr. Scott retrieved
a handgun. There were no sirens or emergency lights to alert him to a police
presence, 7 and there is no evidence that Mr. Scott knew police were surrounding
his door in the middle of the night.
What happened next took place within about two seconds. Mr. Scott began
opening his door inward at medium speed while holding his gun pointed safely
down at the ground.8 At no point did Mr. Scott raise his gun or step outside of his
home. To the contrary, as soon as Mr. Scott saw Deputy Sylvester—a shadowy
figure hiding outside his door, clutching a pistol—Mr. Scott began retreating inside
7
The concurrence says the officers parked their patrol vehicles “in plain view outside
Apartment 114” and that “[t]here was a front window next to the front door of 114.” Conc. Op.
at 7. This suggests that Mr. Scott was aware of police presence. Once again, the record we have
is more complicated than this. In her deposition, Ms. Mauck said she believed there was a fan in
the living room window the night of the shooting. A fan could have obstructed Mr. Scott’s view
of the police cars, so construing the evidence in the light most favorable to plaintiffs, we must
assume here that police cars were not visible from that window.
8
Deputy Sylvester claimed that Mr. Scott “flung open” the door and “was standing there
with his arm extended and a semi-automatic pistol pointed straight at my face.” Yet again,
Deputy Sylvester’s claim conflicts with other record evidence, so we cannot rely on it.
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and closing his door. This seems like a normal enough response, but Deputy
Sylvester says he viewed Mr. Scott’s retreat as an attempt to “get a position of
cover [behind the door] where he can engage me.” 9 Deputy Sylvester started
shooting without warning. He rapidly fired six bullets. Three hit Mr. Scott. Mr.
Scott collapsed onto his couch, where he died from his injuries. Mr. Scott never
fired a shot. In fact, he never even chambered a round so his gun could fire.
II.
Qualified immunity protects officers only when they do not violate the
victim’s clearly established rights. Perez, 809 F.3d at 1218. Courts are tasked
with a two-part inquiry when deciding whether qualified immunity applies: (1) do
the facts alleged, construed in the light most favorable to the plaintiffs, establish
that a constitutional violation occurred; and (2) was the violated constitutional right
clearly established. Id. A right may be clearly established by an existing decision
of the Supreme Court, this Court, or the state high court. Valderrama v. Rousseau,
780 F.3d 1108, 1112 (11th Cir. 2015). For a right to be clearly established, “there
need not be a case on all fours, with materially identical facts”; indeed, there can
be “notable factual distinctions” between the precedent and the case before the
court. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1278 (11th Cir.
2004) (quotations omitted). Although the Supreme Court recently reminded us
9
As mentioned, one of the officers testified that the door was hollow, a quality that
Deputy Sylvester may have observed while knocking.
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that “clearly established law should not be defined at a high level of generality,” it
also restated the exception to this rule: “general statements of the law” can still
create clearly established law in “obvious case[s].” White v. Pauly, 580 U.S. ___
(2017) (slip op. at 6–7). We have said that officials need only have “reasonable
warning” that their conduct violated constitutional rights. Holloman, 370 F.3d at
1278 (quotation omitted); see also United States v. Lanier, 520 U.S. 259, 271
(1997) (“[G]eneral statements of the law are not inherently incapable of giving fair
and clear warning . . . .”).
In considering whether the facts alleged show a violation of clearly
established law, we must remember to “view all evidence and factual inferences in
the light most favorable to the non-moving party.” Perez, 809 F.3d at 1217. That
means where there are “varying accounts of what happened,” the proper standard
requires adoption of the account most favorable to the non-movants. Id.; see also
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013).
III.
Contrary to what the District Court found, there were two clear
constitutional violations here. First, the reflex shooting and killing of Mr. Scott, as
he opened the door to his house then tried to step back inside, was manifestly
unreasonable under these circumstances. Second, the aggressive police tactics that
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led to this tragedy far exceeded the scope of a consensual, information-gathering
“knock and talk.” By accepting these violations as business as usual, the panel
opinion weakens core constitutional rights and gives dangerous guidance to police
officers.
A. Excessive Force
The use of deadly force is a per se seizure under the Fourth Amendment.
That being the case, the courts are left to decide only whether the force was
reasonable in the circumstances. See Tennessee v. Garner, 471 U.S. 1, 7–8, 105 S.
Ct. 1694, 1699 (1985). “To determine the constitutionality of a seizure we must
balance the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental interests alleged
to justify the intrusion.” Id. at 8, 105 S. Ct. at 1699 (quotation omitted) (alteration
adopted). In considering the government’s interests, this balancing test looks at
“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 v. Connor, 490 U.S. 386, 396, 109
S. Ct. 1865, 1872 (1989). Ultimately, “[t]he ‘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.” Id. at 396–97, 109 S. Ct. at 1872.
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Viewing the facts most favorably to these plaintiffs, Deputy Sylvester
rapidly fired six bullets at Mr. Scott: (1) who was admittedly not a suspect, (2) who
was committing no crime, (3) who was in his own home, (4) with no warning,
(5) almost as soon as he opened his door, and (6) as he was stepping back into his
home. Or, to use the Graham balancing test, Mr. Scott was not engaging in any
crime (much less a severe one), was not actively resisting arrest, and was not
attempting to flee, though Deputy Sylvester thought Mr. Scott posed a threat. On
the other side of the scale, Deputy Sylvester effected the greatest deprivation there
is—he killed Mr. Scott. The District Court held that this killing was objectively
reasonable because Deputy Sylvester thought Mr. Scott was a threat when he “saw
a man holding a gun.” The court relied almost exclusively on the fact that Mr.
Scott had a gun, calling it “the most critical fact in this case.” The court even
placed blame on the victim: “Andrew Scott made a fateful decision that night: he
chose to answer his door with a gun in his hand. That changed everything. That is
the one thing that—more than anything else—led to this tragedy.”
The District Court’s conclusion that the use of deadly force was reasonable
in these circumstances is wrong for several reasons. First, the District Court’s
conclusion of objective reasonableness on the part of the officers is wrong as a
matter of clearly established Fourth Amendment law. The fact that a person has a
gun does not, by itself, decide the excessive-force question. This Court recently
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confirmed that “the mere presence of a gun or other weapon is not enough to
warrant the exercise of deadly force and shield an officer from suit.” Perez, 809
F.3d at 1220. While the presence of a weapon may certainly be a part of the
excessive-force analysis, “the ultimate determination depends on the risk
presented, evaluating the totality of the circumstances surrounding the weapon.”
Id.
In circumstances closely resembling this case, this Court held that an
officer’s use of deadly force was excessive even though the victim had a gun. In
Lundgren v. McDaniel, 814 F.2d 600 (11th Cir. 1987), a husband and wife who
owned a video store slept behind a desk in the store one night because a store
window had been broken during the day. Id. at 602. Mr. Lundgren had a handgun
with him. Id. Around 2:00 a.m., two deputy sheriffs noticed the broken window
and entered the dark store without announcing themselves. Id. When Mr.
Lundgren heard glass crunching and began to rise from behind the desk with his
gun, one of the deputies shot him to death. Id. Mr. Lundgren never fired his gun.
Id. Just like Mr. Scott, Mr. Lundgren was (1) not a suspect, (2) committing no
crime, (3) on his own property, (4) killed without warning, and (5) shot
immediately after he presented himself with a gun. This Court rejected the
argument that the officers acted reasonably by shooting Mr. Lundgren, noting that
it would be different if Mr. Lundgren had threatened the officers with his gun. See
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id. at 602–03. Thus, the fact that Mr. Lundgren responded to the police’s late-
night disturbance with a gun did not justify his instant death.
Despite Lundgren’s similarity to this case, neither the District Court nor the
panel ever mentioned it. Now the concurrence says Lundgren is different from Mr.
Scott’s case because here there was an “advance report of a speeding motorcyclist
involved in an assault and battery with a loaded firearm,” while in Lundgren there
was no advance report of a potentially armed burglary suspect in the store. Conc.
Op. at 19. This leads to the concurrence’s theory (never expressed in the panel
opinion) that Deputy Sylvester “had reason to think” that the premises contained
someone who was “armed and dangerous” based on the advance report, while the
officers in Lundgren had no such reason. Id. at 20. Although a valiant effort, this
distinction is immaterial. A broken storefront window indicates trouble and
possible danger in the same way an advance report would. Indeed, a broken
window foreshadows danger at a specific location, unlike this case, where Mr.
Scott’s home came to the officers’ attention by way of the fickle finger of fate I’ve
described. The officers who came to Mr. Scott’s home had no good reason to
identify the person in Apartment 114 as the armed motorcyclist. They even
acknowledged later that “the occupants of Apartment [114] were not suspects.”
The concurrence also says Lundgren is not like Mr. Scott’s case because
whether the storeowner in Lundgren even had a gun was disputed. Id. at 19. But
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in its analysis, Lundgren emphasized that the parties there “sharply contested”
whether the storeowner “threatened the officers with a weapon,” so a jury “could
have reasonably believed that the officers were neither threatened by a weapon, nor
appeared to be threatened by a weapon.” 814 F.2d at 603. This idea is present in
Mr. Scott’s case as well. Although the parties do not dispute that Mr. Scott held a
gun, they do dispute whether Mr. Scott threatened or appeared to threaten Deputy
Sylvester with the gun. 10
There is also related Eleventh Circuit precedent, Menuel v. City of Atlanta,
25 F.3d 990 (11th Cir. 1994), in which this Court rejected an excessive-force claim
where the suspect actually shot at police, but noted that the police did not act
aggressively toward another member of the same household who held a gun in his
own home. Police responded to a call around midnight about a “violent and
demented” suspect. Id. at 991. When the police arrived, the suspect opened the
door and lunged at them with a butcher knife, then locked herself in a bedroom.
Id. at 992. The police entered the bedroom intending to capture her, but she
unexpectedly began firing a gun at them. Id. at 993. The police returned fire and
killed the suspect. Id. On these facts, this Court held that the officers’ use of force
was objectively reasonable, noting that the officers “proceeded slowly, cautiously,
10
The concurrence also says that unlike in Lundgren, the officers here “knocked on the
door first and did not enter . . . unannounced.” Conc. Op. at 20. That’s factually incorrect.
Although Deputy Sylvester did knock on the door, the officers never identified themselves as
law enforcement. Knocking and announcing are two different things.
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and precisely, resorting to deadly force only when assaulted with deadly force.”
Id. at 996. We also noted that the officers “took no unusual or aggressive action”
toward the suspect’s father when he came out of his bedroom “understandably
startled” at the late-night disturbance, even though the father had a loaded shotgun.
Id. at 996 n.9.
On its own, Lundgren shows that Deputy Sylvester violated Mr. Scott’s
clearly established constitutional rights. And when viewed together, Lundgren and
Menuel demonstrate the straightforward line courts observe, with people holding a
gun in their own house as a constitutionally guaranteed tool of self-defense on one
side,11 and people who go beyond that to menace police with their gun on the
other. The Supreme Court also drew this line in Garner, one of the seminal
excessive-force cases. See 471 U.S. at 11, 105 S. Ct. at 1701 (prohibiting deadly
force where “the suspect poses no immediate threat to the officer [or] to others,”
but allowing it where “the suspect threatens the officer with a weapon”). On the
facts as we must view them here, Mr. Scott was on the right side of this line
because he did not threaten the officers with his gun. He merely held it pointing
safely at the ground while he was in his own home, and he had even started to
retreat. Deputy Sylvester immediately reacted by rapidly firing six bullets at Mr.
11
See District of Columbia v. Heller, 554 U.S. 570, 628, 128 S. Ct. 2783, 2817 (2008)
(stating that the home is “where the need for defense of self, family, and property [with a gun] is
most acute”).
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Scott, killing him practically the moment he opened the door. Under our caselaw,
this was not even close to reasonable. 12
To reach the opposite conclusion, the District Court relied on the fact that
Mr. Scott was backing inside his home when he was killed. That court relied on
Deputy Sylvester’s subjective belief that Mr. Scott was backing inside to take
cover for a gun battle, and the concurrence parrots this point of view. Conc. Op. at
11–13. I find it surprising that the concurrence accepts the officers’ killing of Mr.
Scott based on his retreat into his home. Yet both the District Court and the
concurrence endorse the view that Deputy Sylvester’s decision to shoot Mr. Scott
dead was objectively reasonable because an officer in Deputy Sylvester’s place
“could have reasonably perceived” that Mr. Scott’s retreat “was an attempt to take
cover to fire.” Id. at 11.
This faulty conclusion illustrates the mistake the District Court made (and
the concurrence now endorses) in its qualified immunity analysis. The only fact
available to us in reviewing this case is that Mr. Scott stepped back after opening
the door. Deputy Sylvester’s perception that Mr. Scott retreated in order to take
cover and fire at him is nothing more than the officer’s subjective belief. The law
of qualified immunity forbids us from deciding this case based on Deputy
12
For a recent case confirming this proposition, see Ayers v. Harrison, 650 F. App’x 709,
715, (11th Cir. 2016) (per curiam) (“Instead of evaluating whether [the victim] was a true
threat—or was simply scared of being robbed . . . [the officer] fired his weapon without warning
or provocation.”).
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Sylvester’s subjective beliefs. The proper legal inquiry is an objective one, and an
officer’s subjective beliefs cannot “make an objectively unreasonable use of force
constitutional.” Graham, 490 U.S. at 397, 109 S. Ct. at 1872. So even if Mr.
Scott’s retreat actually put Deputy Sylvester in fear of imminent harm, we cannot
rely on an officer’s subjective belief that his life was in danger “to objectively
determine the reasonableness of his actions.” Perez, 809 F.3d at 1220. Instead, we
are confined to objective “facts and circumstances.” Id. Given the officers’
knowledge that the door to Apartment 114 was hollow, Deputy Sylvester’s
subjective belief that Mr. Scott moved behind this hollow door as if to fire is not
objectively reasonable, particularly when Mr. Scott’s movement was entirely
consistent with retreat into his home. And in any case, blindly accepting Deputy
Sylvester’s beliefs as objectively reasonable at the summary judgment stage draws
an impermissible inference in his favor. Any ambiguity surrounding the fact of
Mr. Scott’s retreat should have been resolved in favor of the plaintiffs. See Perez,
809 F.3d at 1217. It is the job of a jury to decide why Mr. Scott was backing
inside his home. So too must a jury decide whether Deputy Sylvester’s subjective
belief was objectively reasonable.
In addition to these Fourth Amendment concerns, the District Court’s
conclusion that deadly force was reasonable here also plainly infringes on the
Second Amendment right to “keep and bear arms.” See District of Columbia v.
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Heller, 554 U.S. 570, 592, 635, 128 S. Ct. 2783, 2797, 2821–22 (2008) (finding
that the Second Amendment “guarantee[s] the individual right to possess and carry
weapons in case of confrontation,” and concluding that a ban on handgun
possession and use for self-defense in the home violates this constitutional
guarantee). If Mr. Scott was subject to being shot and killed, simply because (as
the District Court put it) he made the “fateful decision” to answer a late-night
disturbance at the door to his house, and did so while holding his firearm pointed
safely at the ground, then the Second Amendment (and Heller) had little effect.
B. Warrantless Raid
The Fourth Amendment’s protections are, and always have been, at their
apex in the home. See Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038,
2043 (2001) (describing the home as “the prototypical . . . area of protected
privacy”); Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 1697 (1999)
(“The Fourth Amendment embodies th[e] centuries-old principle of respect for the
privacy of the home.”); United States v. U.S. Dist. Ct. for E.D. Mich., 407 U.S.
297, 313, 92 S. Ct. 2125, 2134 (1972) (“[P]hysical entry of the home is the chief
evil against which the . . . Fourth Amendment is directed.”). The Constitution
guarantees “the right of a man to retreat into his own home and there be free from
unreasonable government intrusion.” Silverman v. United States, 365 U.S. 505,
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511, 81 S. Ct. 679, 683 (1961). Mr. Scott did nothing more than exercise this right
when police officers converged on his home without a warrant and killed him.
The officers argued—and the District Court held—that this warrantless
intrusion was constitutional under the “knock and talk” exception to the Fourth
Amendment’s warrant requirement. A knock and talk is a consensual encounter
between police who seek to gather information and a civilian, which takes place at
the civilian’s home. 13 See United States v. Smith, 688 F.3d 730, 734 (11th Cir.
2012). In Florida v. Jardines, 569 U.S. __, 133 S. Ct. 1409 (2013), the Supreme
Court discussed the legal basis for the knock and talk exception. 14 It stated that a
knock and talk is authorized by longstanding social custom, which creates an
implied license for a “visitor to approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer)
leave.” Id. at 1415. The Court emphasized that knock and talks, when conducted
in this way, are allowed “precisely because [it] is ‘no more than any private citizen
might do.’” Id. at 1416 (quoting Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct.
1849, 1862 (2011). This Court has recognized the same legal basis for knock and
talks. See United States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (per
curiam).
13
As I’ve described, there was no talk here. This was a knock and shoot.
14
Jardines framed the issue, but it was not the first Supreme Court case to discuss the
legal basis for the knock and talk exception to the Fourth Amendment. See, e.g., Kentucky v.
King, 563 U.S. 452, 469–70, 131 S. Ct. 1849, 1862 (2011).
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When officers exceed the scope of the implied license for visitors to
approach and knock, however, they may no longer claim shelter under the knock
and talk exception to the Fourth Amendment’s warrant requirement. In Jardines,
the officers exceeded the scope of the implied license by bringing a drug-sniffing
dog onto the defendant’s porch. 133 S. Ct. at 1416 & nn.3–4. The Supreme Court
said “[t]here is no customary invitation to do that”; whereas “a visitor knocking on
the door is routine,” a visitor acting like the officers “would inspire most of us to—
well, call the police.” Id. at 1416. The Court’s decision turned on the officers’
violation of “background social norms,” which showed that the scope of the license
was exceeded. Id. And it noted that the scope of the license was not exceeded
merely because a drug-sniffing dog was used—rather, “a typical person would find
it a cause for great alarm . . . to find a stranger snooping about his front porch with
or without a dog.” Id. at 1416 n.3 (quotation omitted). This Circuit has also
recognized that exceeding the scope of a knock and talk is illegal. See Walker, 799
F.3d at 1363.
The officers in Mr. Scott’s case try to shoehorn their tactics into the knock
and talk exception, saying that they only intended to ask for information as visitors,
and they would have left Apartment 114 if no one had answered. The District
Court and the panel accepted these statements and, in the process, rejected the
plaintiffs’ claims. But the facts, properly viewed in the light most favorable to the
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plaintiffs, tell a very different story. Unlike consensual visitors, the officers:
(1) approached Mr. Scott’s home at 1:30 a.m.; (2) tactically surrounded the only
exit; (3) drew loaded guns; and (4) repeatedly slammed on the door without
identifying themselves. These aggressive tactics did not fit into the implied license
to approach and knock. Just like Jardines, there is no customary invitation to do
that. Rather, seeing people outside your door at 1:30 a.m., in the dark, holding
loaded guns, would be “a cause for great alarm” and would “inspire most of us to[]
call the police.” Jardines, 133 S. Ct. at 1416 & n.3. In circumstances like these,
the implied consent underlying the knock and talk exception disappears, because
no “background social norms” could possibly validate the officers’ conduct. To
the contrary, American social norms and laws empower people to protect
themselves from armed intrusions into their homes. 15
The officers here weren’t ready to talk with Mr. Scott—they were ready for
a raid. 16 Even setting aside the fact that Deputy Sylvester killed Mr. Scott before
any talking at all, would Mr. Scott have been free to “refuse to answer any
questions at any time,” as is necessary for a knock and talk to be lawful? King,
563 U.S. at 470, 131 S. Ct. at 1862. Was he under “no obligation to open the
15
Florida, the state where Mr. Scott was killed, has passed statutes known as “Stand Your
Ground” laws, which allow the use of deadly force in self-defense without the need to retreat.
See Fla. Stat. § 776.012(2) (2014). Even in the minority of jurisdictions that require retreat,
there is typically an exception for one’s home. See, e.g., Conn. Gen. Stat. Ann. § 53a-19(b)
(2010).
16
Indeed, that is exactly what one witness said he thought was happening.
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door” even though the officers kept slamming on it in the middle of the night, so
long and forcefully that even Mr. Scott’s neighbors woke up and came outside? Id.
at 469–70, 131 S. Ct. at 1862. Under the circumstances, I think not.
The concurrence’s claim that these officers, who tactically surrounded Mr.
Scott’s home with their guns loaded, were there to greet Mr. Scott and chat, Conc.
Op. at 25, is flatly inconsistent with its other claim that the officers were entitled to
conclude that the armed motorcyclist may have been inside Apartment 114. Conc.
Op. at 8–9, 12. The concurrence tries to have it both ways: for the excessive-force
violations, it says the officers had every reason to think there was an armed and
dangerous criminal in Apartment 114. Then for the knock and talk violation, it
says the officers were just there for a friendly talk with people who “were not
suspects.” Conc. Op. at 7. Which is it?
The combination of police tactics used here is egregious. As far as I can tell,
no Court of Appeals has reviewed a knock and talk case involving all the
aggressive tactics used here, namely: (1) approaching well after midnight;
(2) taking tactical positions to the sides of a home’s only exit; (3) drawing guns;
and (4) forcefully knocking without identifying themselves. Cases that seem to
come to the attention of the courts, for the most part, involve officers using one of
these tactics during a purported knock and talk. Even in isolation, tactics like
those used by the officers here have met with criticism.
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For instance, United States v. Lara-Mondragon, 516 F. App’x 771 (11th Cir.
2013) (per curiam), is an unpublished case from this Circuit that addressed only
one of the tactics used here. 17 The officers arrived at the home of an armed
suspect, and the suspect fled into his home. Id. at 771–73. The officers assumed
positions “along both sides of the residence,” rather than on the doorstep. Id. at
771–72. This Court considered whether the officers’ positioning made the knock
and talk illegal, but found it did not because the suspect fled into his home after
seeing police and was known to have a gun, which raised officer safety concerns. 18
Id. at 773. We also approved the knock and talk because “no weapons were
drawn” by police during the encounter. Id. Thus, even when three of the four
aggressive tactics seen in this case were not used, we still suggested that the
outcome could have been different if the officers had drawn guns.
While the concurrence dismisses what I say here by pointing out that I “rely”
on out-of-circuit cases, I do not. Conc. Op. at 26. That said, I do find value in
looking at how knock and talk cases are evaluated across the country. And other
courts have stressed the importance of police not drawing their guns during
17
Lara-Mondragon is an unpublished opinion. That being the case, I do not rely on it as
binding precedent. It is not. Rather, the decision represents one of the few times our Court has
addressed the permissibility of a knock and talk when the officers used any of the tactics seen
here. It therefore gives some context to how similar facts have been addressed by this Court.
Our Court often resolves qualified immunity questions in unpublished decisions.
18
Our facts are different. Mr. Scott was not a suspect, was not known to be armed when
the police surrounded his door, and did not know police were outside.
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information-gathering, consensual knock and talks. See, e.g., United States v.
Gomez-Moreno, 479 F.3d 350, 355 (5th Cir. 2007) (“The purpose of a ‘knock and
talk’ is not to create a show of force . . . nor to raid a residence.”); United States v.
Thomas, 430 F.3d 274, 278 (6th Cir. 2005) (“Thomas responded to a simple knock
and request, not an order to emerge or the threat of firearms.”); United States v.
Spence, 397 F.3d 1280, 1284 (10th Cir. 2005) (concluding that a knock and talk
did not constitute a seizure partly because the officers “did not display their
weapons at any time”). The lack of support for conducting knock and talks with
drawn guns is hardly surprising, given that a knock and talk is, by definition, a
consensual encounter. See Smith, 688 F.3d at 734. Having a gun pointed at you
removes the possibility of consent. Demonstrating this principle, I have found
only one (unpublished) Circuit case approving a knock and talk where an officer
drew his gun before knocking, and that court’s approval was grudging. See United
States v. Flores-Castaneda, 384 F. App’x 364 (5th Cir. 2010). And even for this
one case, the court noted, “if the officers truly were uncertain about whether
criminal activity was taking place inside a house [as is required by the knock and
talk exception], they would not approach it with guns drawn.” Id. at 368. While
the Fifth Circuit said it “might well” find the knock and talk unreasonable in the
first instance, it deferred to the district court’s credibility determinations and
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factual finding because it was bound by the standard of review for a suppression
hearing.19 Id. at 368–69.
The lateness of the hour also affects the reasonableness of a purported knock
and talk. It is one thing to “openly and peaceably, at high noon, [] walk up the
steps and knock on the front door.” United States v. Tobin, 923 F.2d 1506, 1511
(11th Cir. 1991) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir.
1964)). It is another to go to a person’s door in the middle of the night. American
“law and legal traditions long have recognized the special vulnerability of those
awakened in the night by a police intrusion at their dwelling place.” United States
v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997). For example, in United States v.
Lundin, 817 F.3d 1151 (9th Cir. 2016), officers conducted a knock and talk at 4:00
a.m. Id. at 1154. The court concluded that this tactic exceeded the scope of the
implied license to approach and knock because “unexpected visitors are
customarily expected to knock on the front door of a home only during normal
waking hours,” and there was no evidence that the officers had a reason for
knocking that “a resident would ordinarily regard as important enough to warrant
an early morning disturbance.” Id. at 1159; see also United States v. Wells, 648
F.3d 671, 680 (8th Cir. 2011) (treating the fact that a knock and talk was conducted
19
The District Court received evidence in Flores-Castaneda. We have no credibility
findings to defer to here, because this district court ruled on summary judgment, and we review
summary judgment rulings de novo. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).
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at 4:00 a.m. as a factor showing unreasonableness); United States v. Reeves, 524
F.3d 1161, 1169 (10th Cir. 2008) (“This [knock and talk] began between 2:30 and
3:00 in the morning, a time which must be taken into consideration when analyzing
the coerciveness of the encounter.” (emphasis added)). Florida courts also
recognize that a late-night knock and talk may be coercive. 20 See, e.g., Hardin v.
State, 18 So. 3d 1246, 1248 (Fla. 2d DCA 2009).
The concurrence says the cases I’ve cited do not apply here because those
cases involved officers “using a coercive show of force” to enter homes without
warrants. Conc. Op. at 26. Then, in comparing this case to Gomez-Moreno, the
concurrence concludes that the officers’ actions here “do not rise to the level of a
‘show of force’” because (1) Deputy Sylvester “did not have a helicopter hovering
overhead”; and (2) although the hour was late, the lateness did not make the
officers’ actions a “raid” because “the lights were on in the apartment.” Id. at 27.
I was not aware that private citizens could immunize themselves from police raids
by simply flipping a light switch. Neither did I know that the police could avoid a
“show of force” by leaving their helicopters at home.
20
In Walker, this Court rejected a claim that lateness alone rendered a knock and talk
illegal “in light of all the circumstances surrounding the officers’ actions.” 799 F.3d at 1364.
Specifically, the lights were on inside the house; a light was on inside a car parked next to the
house; and there was a person visibly slumped over the car’s steering wheel. Id. at 1362, 1364.
Walker is factually distinguishable, and at any rate concerned only one of the four aggressive
police tactics used here. Walker may mean that the lateness of a knock and talk is not
dispositive, but it does not mean lateness is not a relevant factor in judging reasonableness.
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Considering all of the circumstances here, the aggressive tactics used
exceeded the scope of the implied license to approach Mr. Scott’s home and knock.
The police’s warrantless intrusion therefore violated the Constitution. Perhaps if
this purported knock and talk had only been late at night (as in Walker), or had
only involved the officers assuming tactical positions (as in Lara-Mondragon), we
would have a different case. But the officers here did all of these things:
(1) approached Mr. Scott’s home at 1:30 a.m.; (2) tactically surrounded his only
exit; (3) drew loaded guns; and (4) repeatedly slammed on the door without
identifying themselves. 21 Although there are court rulings addressing different
aspects of the behavior here, I found no case in which law enforcement did all of
these things at once. The concurrence says I have not cited cases that are factually
similar to this one. See Conc. Op. at 26–27. There are not a lot of cases like this,
and I hope that is because police don’t often shoot and kill innocent people who
answer a knock at their door. It is the job of this Court to identify cases in which
unconstitutional police tactics led to the senseless loss of life, and then let juries
sort out how things went wrong.22
* * *
21
These are not the actions of consensual visitors like “the Nation’s Girl Scouts.”
Jardines, 133 S. Ct. at 1415.
22
Enforcing the legal limits of knock and talks “may mean that the police use a tactic like
‘knock and talk’ somewhat less frequently, but that may be the price of compliance with the
Fourth Amendment.” United States v. Johnson, 170 F.3d 708, 718 (7th Cir. 1999).
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I appreciate that police must make difficult decisions in tense situations.
And that is why qualified immunity often shields them from suit. But there are
limits to this doctrine. When police clearly violate a person’s constitutional rights,
as here, it is our role to confront that violation of the law and to ensure as best we
can that it is not repeated. I don’t believe the panel’s summary affirmance
performed that role. Instead, it gave a pass as reasonable to the actions of police in
surrounding a randomly selected home in the dead of night, occupied by someone
not a suspect; drawing loaded weapons; pounding on the door until the beleaguered
occupant opened it; and then shooting him on sight, only because he was holding a
gun. If these actions are constitutional, as the panel suggests, then the Second and
Fourth Amendments are having a very bad day in this Circuit.
I respectfully dissent.
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JILL PRYOR, Circuit Judge, with whom WILSON, MARTIN, and
ROSENBAUM, Circuit Judges, join, dissenting from the denial of rehearing en
banc:
I join in full Judge Martin’s thorough and thoughtful dissent. I write
separately to add an observation about the incentives we create for police officers,
and the guidance we provide for district courts, when we cloak fast-acting officers
with qualified immunity based on unreasonably escalated circumstances that they
alone create.
Even though Andrew Scott was not a suspect in any crime, Deputy Richard
Sylvester and his fellow officers—with no reasonable justification for doing so—
assumed tactical positions partially obscured from view, with guns drawn, at Mr.
Scott’s apartment door in the middle of the night and pounded loudly and
insistently on the door without announcing themselves. Mr. Scott, understandably
startled, came to the door with his gun in his hand, ready to defend himself if
necessary. What transpired between the moment the door cracked open and the
moment Deputy Sylvester fatally shot Mr. Scott spanned no more than three
seconds. Viewing the evidence in the light most favorable to Mr. Scott, he, with
his gun pointed at the floor, had time only to open his door and then quietly begin
to retreat inside before Deputy Sylvester fired three bullets into his body, killing
him.
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Deputy Sylvester and his fellow officers created a situation in which anyone
they would confront behind that door would feel panicked. There was absolutely
no objectively reasonable justification for this escalation by the officers, as Judge
Martin explains in her dissent. The district court nonetheless held, based on the
“totality of the[se] circumstances,” that “it was not unreasonable for Sylvester to
believe that his life was in danger in the instant the door opened and to
immediately take action in self-defense.” Summary Judgment Ord., Doc. 73 at 32
(emphasis added).1 The panel, without any additional explanation, agreed. I
cannot. When police unilaterally manufacture alarm and urgency that the situation
at hand clearly does not warrant, the law does not—and must not—grant them
qualified immunity for a deadly split-second decision.
To be sure, in analyzing an officer’s entitlement to qualified immunity we
must view the situation from the eyes of a reasonable officer “on the scene who is
hampered by incomplete information and forced to make a split-second decision
between action and inaction,” Crosby v. Monroe Cty., 394 F.3d 1328, 1334 (11th
Cir. 2004) (emphasis added), in “circumstances that are tense, uncertain, and
rapidly evolving,” Graham v. Connor, 490 U.S. 386, 397 (1989). But here, Deputy
Sylvester almost certainly would have avoided a forced split-second deadly
1
I refer to numbered entries on the district court’s docket as “Doc.”
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decision had he and his fellow officers not unreasonably contrived the tense,
uncertain, and rapidly evolving circumstances at Mr. Scott’s door.
I also am wholly unconvinced by the district court’s reasoning that
“Sylvester knew that the motorcyclist who had eluded him might be armed” so
“[i]t was therefore reasonable for him to believe in that split second that Scott
might indeed be the motorcyclist whom the officers sought because when Scott
opened the door Sylvester saw a man holding a gun.” Doc. 73 at 32-33.
Construing the evidence in the light most favorable to Mr. Scott, any “knowledge”
Deputy Sylvester had about whether the motorcyclist who sped past him earlier in
the night was armed was nothing more than a hunch. Earlier, an armed assault and
battery suspect had driven a motorcycle. Sometime later, about five miles away,
Deputy Sylvester saw a motorcycle speed by in the dark. Deputy Sylvester
testified that he could not identify the make, model, or color of the speeding
motorcycle. Neither Deputy Sylvester nor any other officer identified any shared
characteristic between the first motorcycle or driver and the second. It borders on
meaningless to say that Deputy Sylvester “knew” that the speeding motorcyclist
“might be armed.”
Moreover, it defies logic to extrapolate from Deputy Sylvester’s mere
speculation about the connection between these two incidents that he reasonably
identified Mr. Scott as this criminal motorcyclist from earlier in the night. Mr.
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Scott had a gun. So too does approximately one in three American households.
See Scott Horsley, Guns in America, by the Numbers, NPR (Jan. 5, 2016),
http://www.npr.org/2016/01/05/462017461/guns-in-america-by-the-numbers. By
Deputy Sylvester’s own testimony, there was nothing that linked Mr. Scott to the
crimes Deputy Sylvester was investigating. 2 How could it have been objectively
reasonable for the mere presence of a handgun, a common household item, to
trigger the identification on which the district court relied? Would Deputy
Sylvester have been justified in assuming that any person who happened to appear
at his door with a gun—in the middle of the night, in response to a jarring
pounding on the door—was the perpetrator about whom he was seeking
information? I can hardly imagine a shakier foundation upon which to base the
split-second use of deadly force.
We have never before held that police can, without justification, provoke a
panic, and then hide behind it by claiming that “everything happened fast.”
Deposition of Deputy Sylvester, Doc. 50-2 at 111. 3 Nor should we now. Deputy
2
The concurrence makes much of the fact that a motorcycle and another vehicle
registered to the same owner with an address in a different city were parked in front of the door
to Mr. Scott’s apartment. But the officers conceded that Mr. Scott was not a suspect. Nothing
prevented the officers from approaching Mr. Scott’s door to conduct a routine knock and talk to
obtain information about the motorcycle parked nearby. But as I describe here and as Judge
Martin explains in detail in her dissent, Deputy Sylvester’s conduct far exceeded the scope of a
proper knock and talk.
3
I would have a very different view of this case under different facts. If the officers had
conducted a true knock and talk and Mr. Scott had lunged out the door wielding a gun, Deputy
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Sylvester and his fellow officers say they were approaching Mr. Scott as a member
of the community, not as a known criminal or even a suspect or person of interest.
Indeed, in Deputy Sylvester’s own words, the officers merely intended to “knock[ ]
on that door . . . . to get information.” Id. at 118. The mere fact that Mr. Scott
answered the door with a lawfully carried gun at his side could not reasonably have
changed the officers’ approach once they laid eyes on him. Instead of setting up
such a show of force that the neighbors perceived the event as a raid and then
reacting immediately to the sight of Mr. Scott with the use of deadly force,
reasonable officers should have proceeded slowly and deliberately with their
original plan.
The panel stamps a seal of approval on the district court’s theory that,
because everything happened so fast, the officers’ actions were reasonable. I am
deeply troubled by an analysis that rewards officers with qualified immunity when
they move faster, rather than slower, in circumstances that do not in and of
themselves warrant a vertiginous tactical approach. It simply cannot be that where,
as here, the facts we must credit demonstrate that the officers alone created
urgency and escalated the situation to an approach akin to a raid, without any
Sylvester very well may have been entitled to qualified immunity for his use of deadly force. He
also may have been entitled to qualified immunity if the undisputed facts demonstrated that Mr.
Scott’s actions contributed to the “tense, uncertain, and rapidly evolving” circumstances.
Graham, 490 U.S. at 397. But neither is the case here.
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reasonable justification, those very circumstances entitle the officers to qualified
immunity. 4
Respectfully, I dissent from the denial of rehearing en banc.
4
I hope that district courts will not draw such a conclusion from the panel’s decision.
Although unpublished opinions from this Court are non-precedential, I recognize that, for
practical purposes, they provide guidance for our district courts even though they are not binding
authority. But the panel’s decision here, like all unpublished decisions, is “persuasive only
insofar as [its] legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340,
1345 n.7 (11th Cir. 2007). District courts may consider whether the panel’s legal analysis is
persuasive. In my view, it isn’t.
65