Victor Revill v. Richardson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12122
Non-Argument Calendar
____________________
CHRISTOPHER SCROGGINS,
Plaintiff,
VICTOR REVILL,
appointed as personal represenatative of
Christopher Scroggins’s estate,
Plaintiff-Appellee,
versus
RICHARDSON,
Officer,
Defendant-Appellant,
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2 Opinion of the Court 22-12122
BIRMINGHAM, CITY OF,
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cv-00553-GMB
____________________
Before WILLIAM PRYOR , Chief Judge, and J ORDAN and B RANCH, Cir-
cuit Judges.
PER CURIAM:
Officer James Richardson appeals the denial of qualified im-
munity from Christopher Scroggins’s claim of excessive force in vi-
olation of the Fourth Amendment, 42 U.S.C. § 1983. Victor Revill,
as personal representative of Scroggins’s estate, moves to dismiss
for lack of jurisdiction. Because Richardson’s argument turns on an
evidentiary issue, which we lack jurisdiction to review on interloc-
utory appeal, we dismiss this appeal.
After midnight on September 19, 2019, Scroggins broke into
a car in a parking lot. Richardson, an on-duty Birmingham police
officer, answered a dispatch call for breaking-and-entering and
found Scroggins in the car. Richardson approached Scroggins with
his gun drawn and ordered him out of the car.
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22-12122 Opinion of the Court 3
What happened next is in dispute. Revill asserts that Scrog-
gins exited the car, and Richardson frisked him but found no
weapon. Scroggins pulled away and began to run, but Richardson
intentionally shot him in the back of the neck to stop him from
getting away. Although Scroggins spoke to an officer at the hospital
and made a recorded statement that the shooting was an accident
and not Richardson’s fault, Scroggins stated in his deposition that
he was on pain medication, still under the effects of anesthesia from
surgery, and did not remember the conversation.
Richardson has a different recollection. He contends that he
had no time to search Scroggins, so he was concerned that Scrog-
gins might have a weapon. After Scroggins pulled away and tried
to run, a tussle ensued. When Richardson pulled Scroggins toward
him, Scroggins’s neck made contact with Richardson’s gun, and
Richardson stumbled on a concrete wheel stop. Richardson be-
lieved that his gun discharged due to the tussle.
Richardson moved for summary judgment on the exces-
sive-force claim based on qualified immunity. The magistrate
judge, whom the parties jointly consented to conduct the proceed-
ings, 28 U.S.C. § 636(c), denied Richardson qualified immunity be-
cause of the disputed factual issue whether he intentionally shot
Scroggins. The magistrate judge ruled that although “a reasonable
juror viewing the video footage might see two men struggling and
tripping over a parking block, resulting in an accidental discharge
of Richardson’s gun, another juror watching the same recordings
might fairly conclude that Richardson intentionally shot
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4 Opinion of the Court 22-12122
Scroggins.” The magistrate judge explained that, viewing the facts
in the light most favorable to Scroggins, Richardson’s intentional
use of deadly force was unreasonable because binding authority es-
tablished that deadly force cannot be used against a fleeing, un-
armed suspect who poses no immediate threat to officers or others.
The magistrate judge also stated that “if Richardson’s use of force
was constitutionally excessive but unintentional, he would be enti-
tled to qualified immunity.”
Revill moves to dismiss this appeal for lack of jurisdiction
because the magistrate judge’s ruling turned on a factual issue—
whether a reasonable jury could find that Richardson intentionally
shot Scroggins—instead of a legal issue. We agree.
The denial of qualified immunity is an appealable “final de-
cision,” 28 U.S.C. § 1291, only insofar as it turns on an issue of law.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The collateral order
doctrine provides that we have jurisdiction over an appeal if the
order conclusively determines the disputed question, resolves an
important issue completely separate from the merits, and is effec-
tively unreviewable on appeal from a final judgment. Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981). Although “a claim
of immunity is conceptually distinct from the merits of the plain-
tiff’s claim, purely factual questions of whether a defendant vio-
lated the plaintiff’s rights are not separable from the merits of his
claim,” so they do not meet the second requirement of the collat-
eral order doctrine. Hall v. Flournoy, 975 F.3d 1269, 1275 (11th Cir.
2020) (citation omitted). And we are barred from preliminarily
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22-12122 Opinion of the Court 5
reviewing “whether or not the pretrial record sets forth a ‘genuine’
issue of fact for trial.” Id.
Richardson contends that he is entitled to qualified immun-
ity because he did not violate a clearly established constitutional
right. Although his arguments are dressed up as legal challenges as
to whether his conduct violated clearly established law, Richardson
effectively argues that the evidence, when viewed in the light most
favorable to him, does not support a finding that the shooting was
intentional. See Simmons v. Bradshaw, 879 F.3d 1157, 1163–64 (11th
Cir. 2018) (“If a government official moves for summary judgment
asserting entitlement to qualified immunity, then the relevant facts
are construed in the light most favorable to the non-movant—i.e.,
the plaintiff—and the court should decide the issue based on those
facts.” (emphasis added)). For example, Richardson argues that his
“accidental application of force” was reasonable under the totality
of the circumstances because “[n]o reasonable jury could find that
Scroggins was under control, not resisting, and obeying com-
mands.” He contends that Revill failed to supply caselaw “that de-
clares a Fourth Amendment violation when force is accidentally
used on a suspect.” And he asserts that, “if after de novo review,
[we] determine[] the shooting of Scroggins was accidental, [he] is
entitled to qualified immunity.” To that end, Richardson also chal-
lenges the magistrate judge’s determination that the videos do not
clearly establish that Richardson had enough time to search Scrog-
gins for a weapon.
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6 Opinion of the Court 22-12122
Whether Richardson violated clearly established law turns
on issues of fact. If Richardson intentionally shot Scroggins while
he was trying to run away, not carrying a weapon, and posing no
threat to Richardson or others, then Richardson violated clearly es-
tablished law. See Bradley v. Benton, 10 F.4th 1232, 1243 (11th Cir.
2021) (recognizing that the Supreme Court has “clearly established
that an officer cannot use deadly force to stop an unarmed man
who is not suspected of committing a violent crime from fleeing
on foot.”); Cantu v. City of Dothan, Alabama, 974 F.3d 1217, 1230
(11th Cir. 2020) (“[R]esisting arrest alone is not enough to justify
the use of deadly force”). But if Richardson accidentally shot Scrog-
gins during their tussle in the parking lot, then Richardson did not
violate clearly established law. It is not for us to decide, at this junc-
ture, whose version of the facts should prevail. See Simmons, 879
F.3d at 1163. A jury will need to decide. We lack jurisdiction over
this interlocutory appeal.
We DISMISS this appeal for lack of jurisdiction.
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