Case: 14-14673 Date Filed: 03/16/2017 Page: 1 of 65 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 ________________________ Case: 14-14673 Date Filed: 03/16/2017 Page: 2 of 65 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. 2 Case: 14-14673 Date Filed: 03/16/2017 Page: 3 of 65 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of rehearing en banc: A majority of the Court has voted not to rehear en banc the panel’s non- published, and thus non-precedential, decision.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 3 Case: 14-14673 Date Filed: 03/16/2017 Page: 4 of 65 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 4 Case: 14-14673 Date Filed: 03/16/2017 Page: 5 of 65 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 1The 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. 5 Case: 14-14673 Date Filed: 03/16/2017 Page: 6 of 65 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.” 6 Case: 14-14673 Date Filed: 03/16/2017 Page: 7 of 65 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 7 Case: 14-14673 Date Filed: 03/16/2017 Page: 8 of 65 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 8 Case: 14-14673 Date Filed: 03/16/2017 Page: 9 of 65 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. 9 Case: 14-14673 Date Filed: 03/16/2017 Page: 10 of 65 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.’” 2Plaintiff 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.” 10