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Date Filed: 05/24/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14570
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00010-WLS

YONG NAM WILSON,

as Administrator of the Estate of Lemuel Keith Wilson,
JESSICA BATES,
as natural guardian and next friend of T.S. Wilson,
LATRICE WILLIAMS,
as natural guardian and next friend of M. Wilson,
Plaintiffs - Appellants,
versus
MATTHEW MILLER,
individually and in his official capacity as a police officer
of the City of Pelham,
NEALIE MCCORMICK,
individually and in his official capacity as Chief of Police
of the City of Pelham,
CITY OF PELHAM,
a municipal corporation of Georgia,
Defendants - Appellees.

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________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 24, 2016)

Before TJOFLAT, JILL PRYOR, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiffs -- as administrators of the estate of Lemuel Keith Wilson, and as

natural guardians of Wilsons two minor children -- appeal the district courts grant
of summary judgment in favor of Defendant Officer Matthew Miller in Plaintiffs
42 U.S.C. 1983 civil action. This action is about alleged excessive force in
violation of the Fourth Amendment. 1 No reversible error has been shown; we
affirm.
This case arises from the fatal shooting of Wilson. On 2 March 2012,
Sergeant Cook and another officer with the Pelham Police Department responded
to a 911 call about a naked man who was seen running through a backyard.
Shortly thereafter, Sergeant Cook radioed Officer Miller, an investigator with the
1

Plaintiffs raise no challenge to the district courts grant of summary judgment in favor of Chief
Nealie McCormick, the City of Pelham, and in favor of Officer Miller in his official capacity.
These claims are abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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Pelham Police Department, for assistance in locating the man and requested that
Officer Miller bring the Departments four-wheeler.
When Officer Miller arrived at the scene, the 911 caller told Officer Miller
that a man had run naked through her backyard and into the woods behind her
house. Given the mans reported behavior, Officer Miller suspected that the man
might have been under the influence of drugs or alcohol.
Officer Miller entered the woods on foot to locate the man. Several minutes
later, Officer Miller heard someone behind him say hey. Officer Miller turned
around and saw a naked man -- later identified as Wilson -- crouching down about
50 yards away.
Officer Miller asked Wilson if he was okay. Wilson responded immediately
by asking Officer Miller whether he had a gun, to which Officer Miller said yes.
Wilson then asked Officer Miller if he wanted to use the gun, and Officer Miller
said no. Wilson then said well, youre going to have to, because youre going
to have to kill me or Im going to kill you. And thats what I aim to do.
Wilson then stood up from his crouched position and began walking toward
Officer Miller with his fists closed. Officer Miller saw that Wilson was holding
something in his left hand. Officer Miller could tell that the object was no gun, but
thought it could be a small knife.2

The object in Wilsons hand was, in fact, a roll of over sixty twenty-dollar bills.
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Officer Miller began talking to Wilson in an effort to calm Wilson down.

Officer Miller -- who had been in radio contact with his fellow officers throughout
the search -- also began requesting back up and reporting that Wilson had
threatened to kill him. 3
Meanwhile, Wilson continued to approach Officer Miller. Officer Miller
took his gun out of its holster and aimed it toward the ground as he started backing
away from Wilson. In response to Officer Millers continued efforts to calm
Wilson down, Wilson said its too late for that, youve already told them where
Im at, theyre coming for me. Then, when Wilson got within six feet of Officer
Miller, Wilson raised his arms and made a lunging motion toward Officer Miller.
Officer Miller fired his gun, striking Wilson twice in the stomach. Wilson later
died of his wounds.
Plaintiffs filed this civil action against Officer Miller individually, alleging
that Officer Miller used excessive force, in violation of the Fourth Amendment,
when he shot Wilson. In a detailed written order, the district court granted Officer
Millers motion for summary judgment: a motion based on an assertion of
qualified immunity.

The record contains audio recordings of the 911 calls and radio transmissions made during the
course of the incident. We agree with the district courts finding that the audio files confirm
portions of Officer Millers testimony about his encounter with Wilson, including that Wilson
threatened to kill Officer Miller. Plaintiffs have also never denied that Wilson expressly
threatened to kill Officer Miller.
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We review de novo a district courts grant of summary judgment, viewing

the evidence and all reasonable factual inferences in the light most favorable to the
nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
Qualified immunity offers complete protection for government officials
sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation
omitted). To avoid summary judgment based on qualified immunity, Plaintiffs
must show both that Officer Miller violated a federal right and that the right was
already clearly established -- for the circumstances -- when Officer Miller acted.
See id. When properly applied, [qualified immunity] protects all but the plainly
incompetent or those who knowingly violate the law. Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2085 (2011).
A federal right is clearly established when the contours of [the] right are
sufficiently clear that every reasonable official would have understood that what he
is doing violates that right. Id. at 2083 (quotations and alterations omitted); see
also Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.
1997) (en banc) (For the law to be clearly established to the point that qualified
immunity does not apply, the law must have earlier been developed in such a
concrete and factually defined context to make it obvious to all reasonable
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government actors, in the defendants place, that what he is doing violates federal
law.). We do not require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond debate. Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (emphasis added); see also City & County of San
Francisco, Ca. v. Sheehan, 135 S. Ct. 1765, 1774 (2015); Plumhoff v. Rickard, 134
S. Ct. 2012, 2023 (2014); Stanton v. Sims, 134 S. Ct. 3, 5 (2013); al-Kidd, 131 S.
Ct. at 2084. A plaintiff cannot rely on general, conclusory allegations or broad
legal truisms to show that a right is clearly established. Post v. City of Fort
Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993) (quotations omitted).
The Supreme Court has repeatedly told courts . . . not to define clearly
established law at a high level of generality. See, e.g., Mullenix, 136 S. Ct. at 308
(overruling the denial of qualified immunity); Sheehan, 135 S. Ct. at 1775-76
(overruling the denial of qualified immunity and explaining that [q]ualified
immunity is no immunity at all if clearly established law can simply be defined
as the right to be free from unreasonable searches and seizures.); Plumhoff, 134 S.
Ct. at 2023 (overruling the denial of qualified immunity and commanding courts
not to define clearly established law at a high level of generality . . . since doing
so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.); al-Kidd, 131 S. Ct. at 2084
(overruling the denial of qualified immunity); Anderson v. Creighton, 107 S. Ct.
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3034, 3039 (1987) (overruling the denial of qualified immunity: assertion of a

general constitutional or statutory right is insufficient to defeat qualified immunity
because [i]f the test of clearly established law were to be applied at this level of
generality, . . . [p]laintiffs would be able to convert the rule of qualified immunity .
. . into a rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights.). Courts must instead determine whether the violative
nature of particular conduct is clearly established . . . in the light of the specific
context of the case, not as a broad general proposition. Mullenix, 136 S. Ct. at
308 (emphasis in original).
Although suspects have a right to be free from force that is excessive, they
are not protected against a use of force that is necessary in the situation at hand.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quotation omitted).
No precise or rigid preconditions exist for determining when an officers use of
deadly force is excessive. See Scott v. Harris, 127 S. Ct. 1769, 1777 (2007).
Instead, in deciding the merits of a claim of excessive force, the court must in each
case determine whether -- given all the facts and circumstances of a particular case
-- the force used was reasonable under the Fourth Amendment. Graham v.
Connor, 109 S. Ct. 1865, 1871-72 (1989).
In determining the reasonableness of the force applied, we look at the fact
pattern from the perspective of a reasonable officer on the scene with knowledge of
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the attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate.
McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009). We consider,
among other things, the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight. Graham, 109 S.
Ct. at 1872.
We stress that [t]he reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. Id. And we must allow for the fact that police
officers are often forced to make split-second judgments -- in circumstances that
are tense, uncertain, and rapidly evolving -- about the amount of force that is
necessary in a particular situation. Id. We are loath to second-guess the
decisions made by police officers in the field. Vaughan v. Cox, 343 F.3d 1323,
1331 (11th Cir. 2003).
The evidence, viewed in the light most favorable to Wilson,4 shows that
Officer Miller violated no constitutional right when he shot Wilson; Officer

We reject Plaintiffs contention that the district court failed to view the evidence in the light
most favorable to Wilson. The record demonstrates that the district court construed properly all
genuinely disputed material facts in Wilsons favor. And nothing required the district court to
accept as true Plaintiffs speculative inferences and conclusions about the evidence. See Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742-43 (11th Cir. 1996) (inferences may be drawn in
favor of the nonmoving party only when they are reasonable and have a real basis in the
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Millers conduct was objectively reasonable in the circumstances. Given Wilsons

strange behavior, express threat to kill Officer Miller, possession of a concealed
object, and Wilsons continued aggressive movement toward Officer Miller despite
Officer Millers backing away and taking his gun out of its holster, an objective
officer in Officer Millers situation could have believed reasonably that Wilson
posed an immediate threat to Officer Millers safety. Faced with a tense,
uncertain, and rapidly evolving situation, Officer Miller made a split-second
decision to shoot Wilson to avoid the risk of serious injury. In the light of these
circumstances, we cannot say that Officer Millers decision was unreasonable in
the Fourth Amendment sense. See McCormick v. City of Fort Lauderdale, 333
F.3d 1234, 1246 (11th Cir. 2003) (officers use of deadly force was constitutionally
reasonable because the officer could believe reasonably that the suspect posed an
imminent threat of violence to the officer when the suspect ignored the officers
commands and approached the officer with a stick held above his head).
That we know now that Wilson in fact had no weapon cannot and does not
change our conclusion. The reasonableness of force used is not judged with
20/20 vision of hindsight. See Graham, 109 S. Ct. at 1872. And an officer need
not wait until he is attacked physically before determining reasonably that he is in

record). [A]n inference is not reasonable if it is only a guess or a possibility, for such an
inference is not based on the evidence but is pure conjecture and speculation. Daniels v. Twin
Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1982).
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imminent danger of serious injury. Cf. Long v. Slaton, 508 F.3d 576, 583 (11th
Cir. 2007) (concluding the use of deadly force was reasonable, even though other
less-lethal means of preventing the suspects escape may have existed, because
the police need not have taken that chance and hoped for the best.).
In addition, we obviously conclude that it was not clearly established -- as a
matter of law -- at the time of the shooting in 2012 that Officer Miller (given the
circumstances) acted unreasonably in the Fourth Amendment sense.5 Thus,
Officer Miller is personally entitled to qualified immunity.
Plaintiffs contend that Officer Miller is unentitled to qualified immunity
because he failed to satisfy his burden of showing that he was acting within the
scope of his discretionary authority. In particular, Plaintiffs argue that Officer
Miller was outside his jurisdiction when he searched for and encountered Wilson.
For purposes of qualified immunity, an official acts within his discretionary
authority if he (a) perform[s] a legitimate job-related function . . . (b) through
5

Plaintiffs reliance on our decision in Samples on Behalf of Samples v. City of Atlanta, 846
F.2d 1328 (11th Cir. 1988), to show that Officer Miller violated clearly established law is
mistaken.
Too many important circumstances present in Samples are absent here. In Samples,
plaintiff was shot five times, including once in the back. The Court in Samples also focused on
the significant size difference between the 16-year old plaintiff and the officer, who outweighed
plaintiff by nearly 100 pounds. No comparable size difference exists here. Although Wilson -- a
grown man -- weighed about 40 pounds less than Officer Miller (145 lbs. v. 185 lbs.), Wilson
was also 3 inches taller. In addition, unlike this case, the plaintiff in Samples made no express
verbal threat to kill the officer and no lunging motion toward the officer. Given these important
factual differences, Samples is far from obviously controlling and fails to place the constitutional
question at issue in this case beyond debate such that Officer Miller -- and every reasonable
officer in his position -- would have been on clear notice that the use of a firearm was
unconstitutional.
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means that [are] within his power to utilize. Holloman v. Harland, 370 F.3d 1252,
1265 (11th Cir. 2004). Our inquiry is whether the act complained of, if done for a
proper purpose, would be within, or reasonably related to, the outer perimeter of an
officials discretionary duties. Harbert Intl v. James, 157 F.3d 1271, 1282 (11th
Cir. 1998).
Officer Miller was clearly performing a legitimate job-related function when
he responded to Sergeant Cooks request for assistance in locating Wilson. Even if
we assume that Officer Miller was outside his jurisdiction when he located
Wilson,6 Officer Miller was still acting through means that were within his power
to utilize. Under Georgia law, police officers are authorized to make warrantless
arrests for offenses committed in the officers presence, even if the officer is
outside his jurisdiction. O.C.G.A. 17-4-20(a)(2)(A); Taylor v. Waldo, 709
S.E.2d 278, 281 (Ga. Ct. App. 2011); Delong v. Domenici, 610 S.E.2d 695, 698
(Ga. Ct. App. 2005).
When Officer Miller first encountered Wilson, Wilson was committing an
offense (public indecency, in violation of O.C.G.A. 16-6-8) within Officer
Millers presence. Officer Miller was thus authorized by Georgia law to conduct a
warrantless arrest. Instead of arresting Wilson, however, Officer Miller acted

That the 911 callers house is just outside Pelhams city limits is undisputed. The record,
however, contains no evidence about whether the shooting occurred inside or outside Pelhams
city limits.
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within his discretion to first investigate the situation, including Wilsons condition.
When Wilson threatened immediately to kill Officer Miller and approached Officer
Miller in a threatening way, Officer Miller -- still acting within his discretionary
authority -- used deadly force to protect himself from what he perceived
reasonably to be an imminent threat of serious physical injury. In the light of the
circumstances of this case, Officer Miller was acting inside the scope of his
discretionary authority when the shooting occurred.
For these reasons and given the facts of this case, Officer Miller is entitled to
summary judgment.
AFFIRMED.

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