Jayne Swinford v. Joshua Santos
Citation121 F.4th 179
Date Filed2024-11-04
Docket22-13675
Cited20 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13675
____________________
JAYNE SWINFORD,
PlaintiďŹ-Appellant,
versus
OFFICER JOSHUA SANTOS,
In his individual capacity,
OFFICER CHARLES BIDINGER,
In his individual capacity,
OFFICER ROGER OLIVER WILLIAMS, JR.,
In his individual capacity,
SERGEANT JONATHAN MCILVAN,
In his individual capacity,
CORPORAL RICHARD ALEXANDER LEDER,
In his individual capacity, et al.,
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2 Opinion of the Court 22-13675
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 3:21-cv-00090-CAR
____________________
Before BRANCH, GRANT, Circuit Judges, and CALVERT,â District
Judge.
BRANCH, Circuit Judge:
This appeal arises out of the death of Thomas Swinford.
Thomas was shot and killed by Athens-Clarke County (âACCâ)
police officers after he refused officersâ commands to drop a gun1
and instead raised and pointed it at police officers. Thomasâs
widow, Jayne Swinford, filed a lawsuit in Georgia state court
alleging claims under 42 U.S.C. § 1983 and Georgiaâs wrongful
death statute against seven individual officers who shot Thomas
after he raised his gun, the ACC police departmentâs chief of police
in his official and individual capacities, and the county government.
âThe Honorable Victoria Calvert, United States District Judge for the
Northern District of Georgia, sitting by designation.
1 The gun was actually a BB gun, but Appellant concedes âfor all purposes of
this appeal that the gun Thomas Swinford held . . . reasonably appeared to be
real to those on the scene.â
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Mrs. Swinfordâs complaint referenced, but did not attach, body
camera footage, which she asserted supported her claims. The case
was timely removed to federal court.
Defendants moved to dismiss the complaint on qualified and
official immunity grounds, relying primarily on body camera
footage from two officers that showed the sequence of events
leading up to the shooting. The district court considered the body
camera footage over Mrs. Swinfordâs objections and granted
defendantsâ motion to dismiss, finding that the footage established
that the officers acted reasonably in light of the circumstances they
faced and thus they did not violate Thomasâs constitutional rights.
Accordingly, the district court also denied Mrs. Swinfordâs motion
to amend her complaint on futility grounds. The district court
subsequently denied her motion to reconsider, and she timely
appealed.
On appeal, she again argues that the district court
improperly considered the contents of the body camera footage as
well as that the district court erred in denying her motion to amend
and motion for reconsideration. We disagree. For the following
reasons, we determine that the district court properly considered
the body camera footage under our incorporation-by-reference
doctrine and properly granted defendantsâ motion to dismiss.
Accordingly, after careful review and with the benefit of oral
argument, we affirm the district courtâs orders.
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4 Opinion of the Court 22-13675
I. Background
Mrs. Swinfordâs initial complaint alleged the following facts,
which she based in part off of body camera footage.2
Around 4:15 p.m., on March 8, 2019, the ACC police
department received reports from Thomasâs father and Mrs.
Swinford that Thomas was threatening to commit suicide by police
and was under the influence of drugs. The ACC police department
had responded to three prior suicide threats involving Thomas. In
response to the threat on March 8, 2019, the ACC police
department dispatched units to Thomasâs home in Athens,
Georgia. One of the officers who responded communicated to
dispatch that Thomas had a handgun. Accordingly, the police
department established a perimeter for a âbarricaded gunmanâ
situation.
Mrs. Swinford alleged that once the officers were dealing
with a barricaded gunman situation, the police department was
required, per its own policy, to dispatch a Strategic Response Team
(âSRTâ), whose members have advanced training and special
equipment to respond to situations involving mental health crises.
Nevertheless, the police department did not deploy an SRT,
instead it deployed regular units who created a perimeter around
the residence. At 5:55 p.m., the police department received a
report that Thomas had fled in his motherâs car and was outside
2 Mrs. Swinford titled an entire section of her initial complaint âComprehensive
Facts from Bodycam Videos and Reports.â
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the perimeter. Thomas returned to his parentsâ home shortly
thereafter, and the police department, for the second time, created
a perimeter around the house using non-SRT units. The police
used spike strips when creating the perimeter with the intent to
disable Thomasâs vehicle should he choose to flee a second time.
Despite the implementation of the spike strips, at 6:02 p.m.,
Thomas again broke the perimeter by driving over the spike strips.
He drove âapproximately one-half mile to a vacant church parking
lot, where he parked the disabled vehicle.â
Mrs. Swinfordâs initial complaint described the following
events immediately preceding Thomasâs death:
⢠Police units established a perimeter around the church
parking lot and took cover as they aimed firearms at
Thomas.
⢠Police spent the next twenty minutes ordering Thomas to
put down his gun as he paced near his motherâs vehicle.
⢠Thomas informed the police he would come out if he were
permitted to speak to his wife, but the police directed Mrs.
Swinford not to speak to him.
⢠None of the police units on scene were equipped with âless
lethalâ weapons, such as beanbag or sponge rounds,
although officers repeatedly mentioned that they needed
these rounds while on scene.
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⢠At 6:13 p.m., dispatch advised the units on scene that they
may need an SRT commander, but an SRT commander was
never deployed to the scene.
⢠At 6:25 p.m., Thomas kissed a photo of his family.
⢠At 6:28 p.m., Thomas walked in the direction of two police
officers who had taken cover behind their patrol vehicle and
raised his gun toward them.
⢠At the time Thomas raised his gun, the SRT was not on the
scene.
⢠The seven officer defendants opened fire on Thomas after
he raised his gun, firing a total of twenty-one shots.
⢠Ultimately, six shots struck Thomasâincluding two in the
backâand Thomas died of his injuries.
⢠Mrs. Swinford alleged that â[a]ccording to bodycam
footageâ Thomas fell face down immediately after the first
shots were fired, but that the officers continued to fire on
Thomas after he was already on the ground with his gun out
of reach.
⢠Mrs. Swinford alleged that all officers who fired on Thomas
knew that he âhad expressed the intention to commit suicide
by enticing [the police] to kill him by employing lethal
force.â
Based on the above allegations Mrs. Swinford filed the
instant lawsuit in July 2021, bringing the following three claims:
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Count Iâviolations of the Fourth and Fourteenth Amendment
under 42 U.S.C. § 1983 against the chief of police and the seven
individual officers;3 Count IIâa Georgia wrongful death claim
against the chief of police and the individual officers; and Count
IIIâa claim for Monell 4 liability against the chief of police and the
county. The defendants timely removed Mrs. Swinfordâs lawsuit
to the U.S. District Court for the Middle District of Georgia based
on federal question jurisdiction. Thereafter, they filed a motion to
dismiss arguing that the individual officers were entitled to
qualified immunity, both because their actions did not constitute
excessive force and because the law was not clearly established at
the time of Thomasâs death that their actions violated the
Constitution. In making this argument, they relied on body
camera footage that showed the events leading up to the officers
shooting Thomas as well as the moment that officers discharged
their weapons. Defendants also argued that the Monell claims
against the county and police chief should be dismissed for failure
3 Mrs. Swinfordâs complaint names only the individual officers who shot
Thomas at the church. The complaint does not allege that the chief of police
was present at the perimeter or at the church where Thomas was eventually
shot. Instead, her allegations against the chief pertain to comments he made
at a press conference post-shooting and his alleged failure to ensure officers
were equipped with less than lethal weapons.
4 Monell v. Depât of Soc. Servs., 436 U.S. 658 (1978).
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to state a claim and that the individual officers were entitled to
official immunity on the Georgia wrongful death claim.5
In opposition to the motion, Mrs. Swinford argued that the
district court could not consider the bodycam videos because:
(1) they were not written instruments; (2) they showed only
approximately three minutes of Thomasâs interaction with the
police whereas her complaint relied on facts gleaned from hours of
video across fifteen different body cameras and thus the videos
were not central to Mrs. Swinfordâs claims; and (3) she did not
âstipulateâ to the videosâ authenticity. Notably, however, she did
not argue that the defendantsâ bodycam videos were inauthentic or
had been doctored in some manner, only that they were not
âcomprehensiveâ or âcompleteâ because they showed only
approximately three minutes of the interaction. She also argued
that the individual officers were not entitled to qualified
immunity. 6 She also did not respond to the defendantsâ arguments
regarding the Monell claims against the county and the chief of
police.
5 Defendants also argued that Mrs. Swinfordâs claims were barred by Georgiaâs
two-year statute of limitations because her claims accrued on March 8, 2019,
and she did not file her complaint until July 7, 2021. That issue is not before
us on appeal, and we need not reach it to resolve this case.
6 In making this argument, she argued that the individual officers had failed to
establish they were acting within their discretionary authorityâa dubious
position that she abandons on appeal.
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More than three months after defendants filed their reply
brief, Mrs. Swinford filed a motion to amend her complaint. The
proposed amended complaint would have, among other things,
dropped her references to body camera footage and added a claim
alleging a violation of the Americans with Disabilities Act (âADAâ),
42 U.S.C. § 12112(a), against the county. Defendants opposed the
request to amend the complaint, arguing that amendment would
be futile because any ADA claim failed as a matter of law, and Mrs.
Swinfordâs claims for excessive force failed for the same reasons
raised in their motion to dismissânamely that the defendantsâ
bodycam footage proved no constitutional violation occurred,
regardless of how Mrs. Swinford attempted to frame that evidence.
Mrs. Swinford filed a reply brief, again arguing that the district
court should not consider the videos relied on by the defendants
because they âare a mere fraction of what forms the basisâ of her
claims, and thus the court should grant her leave to amend.
In a comprehensive order, the district court granted
defendantsâ motion to dismiss and denied Mrs. Swinfordâs request
to amend her complaint. The district court relied on the
incorporation-by-reference doctrine to consider the body camera
footage in reaching its decision. In relying on this doctrine, the
district court determined that the initialâand operativeâ
complaint directly referenced the bodycam footage at issue,
including by having an entire section titled âComprehensive Facts
from Bodycam Videos and Reports.â Next, it determined that the
videos were authentic because Mrs. Swinford had disputed their
completeness, not their authenticity. As to that dispute, the district
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court noted that the body camera footage âdepict[ed] the
[i]ndividual [o]fficersâ use of deadly forceâthe moment central to
[Mrs. Swinfordâs] claims.â
After determining it could consider the defendantsâ body
camera footage, the district court summarized the contents. As the
district court emphasized, the defendantsâ body camera footage
tells a different story than the complaint regarding the moment
that officers started shooting at Thomas. Here is what the footage
shows.
For nearly three minutes prior to the shooting, Thomas can
be seen pacing around his vehicle. An officer utilizing a speaker
repeatedly told Thomas to put his gun down while also expressing
concern for his well-being. For example, the officer told Thomas
that they could get him help and that his family was concerned
about him and wanted to know he was âalright.â The officer
instructed Thomas to âset the gun down on the hoodâ and to talk
with him. He told Thomas to put down the gun and come to the
front of his vehicle. He told Thomas that he knew there was a lot
going on, but that they could work through it. He implored
Thomas to âgive [the police] a chance.â He told Thomas that he
knew that Thomas was feeling alone but that he was not alone.
Immediately after the officer told Thomas that he was not
alone, Thomas started walking toward officers with his gun in hand
and the officer on the loudspeaker stated, âDonât do that Thomas.
Thomas do not do that. Drop the gun.â Thomas lifted the gun
and aimed it at some of the officers and, as a result, the officers
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opened fire on Thomas. In total, the shooting consisted of one
volley of fire lasting approximately four seconds. Thomas fell face
down and raised his head after the firing had stopped, and officers
shouted to Thomas to not move. One officer asked others where
Thomasâs gun was, and they answered that it was right in front of
him. Officers approached Thomas, who was still lying face down,
and instructed him not to move. They then placed Thomas in
handcuffs and called for medical help. Following the shooting, one
of the officers stated, â[W]e probably shouldnât have shot him.â
After considering the video evidence, the district court
determined that the individual officers were entitled to qualified
immunity because their use of force was reasonable in light of the
circumstances, namely Thomasâs raising of the gun and pointing it
at some of the officers, and thus they had not committed a
constitutional violation. And because the defendantsâ bodycam
footage established that no constitutional violation occurred, the
district court determined that any amendment would be futile.
The district court also concluded that Mrs. Swinford had failed to
state a failure-to-supervise claim against the police chief because
she did not allege any facts that showed either that the chief directly
participated in the alleged unconstitutional conduct or that a causal
connection existed between the chiefâs actions and the alleged
violation. Similarly, the district court found that the complaint
failed to plead facts to plausibly establish any causal connection
between the countyâs policies or customs and the alleged
constitutional violation. As to Mrs. Swinfordâs proposed ADA
claim in the proposed amended complaint, the district court
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determined that even assuming that officers could be held liable
under the ADA, she had failed to adequately allege facts to show
that an ACC official acted with the required discriminatory intent
or to otherwise make out a prima facie ADA claim. After disposing
of the federal claims, the district court declined to exercise
supplemental jurisdiction over the Georgia wrongful death claim
and dismissed it without prejudice. The district court thereafter
entered judgment in favor of the defendants.
After the district court issued its dismissal order and entered
judgment against Mrs. Swinford, she moved the district court to
reconsider under Federal Rule of Civil Procedure 59(e), again
asserting that the district court erred in considering the defendantsâ
body camera footage. She also argued that the district court erred
in (1) considering the allegations in the complaint instead of her
proposed amended complaint; (2) failing to conduct an
individualized qualified immunity analysis as to each officer;
(3) considering the defendantsâ body camera footage (which came
from only two officers) rather than the body camera footage she
relied upon, which came from all seven officers; 7 and (4) granting
qualified immunity to the individual officers because, in her view,
our decision in Hunter v. Leeds, 941 F.3d 1265 (11th Cir. 2019),
established that the officersâ shooting of Thomas violated his
constitutional rights. Finally, she argued that newly discovered
7 In support of this argument, Mrs. Swinford submitted all body camera
footage in her possession from the March 8, 2019, shooting.
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evidenceâin the form of ACC policies, manuals, and agendasâ
supported her Monell claims against ACC and the police chief.
The district court denied Mrs. Swinfordâs motion to
reconsider, determining that (1) she was largely attempting to
relitigate matters already decided by presenting new arguments
and new evidence (including body camera footage from other
officers); (2) it would not consider her new arguments; (3) it would
not consider the new evidence she submitted because she did not
allege that this evidence was unavailable to her when the district
court was considering the motion to dismiss; and (4) the situation
in Hunter was factually distinct from the instant one. Mrs. Swinford
timely appealed the district courtâs orders. 8
II. Standard of Review
We review the district courtâs grant of a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo.
Davis v. City of Apopka, 78 F.4th 1326, 1331 (11th Cir. 2023), cert.
denied sub nom., Davis v. Apopka, 144 S. Ct. 2528 (2024). âAlthough
we ordinarily review district court orders denying leave to amend
a complaint for abuse of discretion . . . we review such decisions de
novo when the denial is based on a legal determination that
amendment would be futile.â Taveras v. Bank of Am., N.A., 89 F.4th
1279, 1285 (11th Cir. 2024) (quotations omitted). âWe review the
8 Mrs. Swinford does not appeal the district courtâs decision to not exercise
supplemental jurisdiction over her Georgia wrongful death claims.
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denial of a Rule 59(e) motion for abuse of discretion.â Berry v.
Crestwood Healthcare LP, 84 F.4th 1300, 1313 (11th Cir. 2023).
III. Discussion
Mrs. Swinford raises three primary arguments on appeal.
First, she argues that the district court improperly considered the
defendantsâ body camera footage when ruling on defendantsâ
motion to dismiss and thus erred in finding that the individual
officers had not committed a constitutional violation and were
entitled to qualified immunity. Second, she argues that the district
court erred in denying her motion to amend. Finally, she argues
that the district court erred in denying her motion to reconsider.
We address and reject each argument in turn.
A. Motion to Dismiss
1. The district court properly considered the defendantsâ body
camera footage.
In general, district courts must limit their consideration to
the pleadings and any exhibits attached to the pleadings when
ruling on a motion to dismiss. Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11th Cir. 2000). If a party presents, and the court
considers, evidence outside of the pleadings, the general rule
requires the district court to convert the motion to dismiss into a
motion for summary judgment. See Fed R. Civ. P. 12(d); Finn v.
Gunter, 722 F.2d 711, 713 (11th Cir. 1984). However, there are two
exceptions to the general rule: (1) the incorporation-by-reference
doctrine and (2) judicial notice. Tellabs, Inc. v. Makor Issues & Rts.,
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Ltd., 551 U.S. 308, 322 (2007). At issue here is the incorporation-by-
reference doctrine.
Under the incorporation-by-reference doctrine, a district
court may consider evidence attached to a motion to dismiss
without converting the motion into a motion for summary
judgment âif the document is (1) central to the plaintiffâs claim; and
(2) undisputed, meaning that its authenticity is not challenged.â
Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024).
As to the first requirementâthe centrality of the bodycam
footage to Mrs. Swinfordâs claimsâthe defendantsâ bodycam
videos clearly depict the events central to her excessive force
claimâthe events surrounding the individual officers shooting her
husband. The footage shows all the relevant conduct, namely
officersâ attempts to de-escalate the situation, Thomas ignoring the
officersâ instructions to put down his gun, Thomas walking toward
officers while raising the gun, and the officers firing upon Thomas.
This sequence of events is what forms the basis of Mrs. Swinfordâs
claims against the defendants.
Mrs. Swinford appears to argue that the centrality
requirement is not satisfied in this case because, according to her,
the incorporation-by-reference doctrine applies only to written
instruments, and the defendantsâ bodycam videos are not written
instruments. This argument is foreclosed by our decision in Baker
v. City Madison, where we applied the incorporation-by-reference
doctrine to police bodycam footage like the footage at issue in this
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case. 9 67 F.4th 1268, 1277â78 (11th Cir. 2023); see also Johnson, 107
F.4th at 1298. Mrs. Swinford attempts to distinguish Baker by
arguing that an examination of the trial docket in Baker indicates
that initial disclosures had already occurred in that case when the
district court considered the police bodycam footage. But we said
nothing in Baker regarding initial disclosures, and instead held that
the centrality requirement was met becauseâlike defendantsâ
bodycam footage in this caseâthe police bodycam footage in that
case âshow[ed] all the relevant conductâ giving rise to plaintiffâs
claims. Baker, 67 F.4th at 1277. Accordingly, we determine that
the centrality requirement for the incorporation-by-reference
doctrine is met in this case.
Turning now to the second requirement of the
incorporation-by-reference doctrineâthat the bodycam footage be
undisputedâMrs. Swinford argues that (1) she did not stipulate
that the footage was authentic; and (2) the footage was incomplete
because it showed only excerpts of the officersâ body camera
footage and did not include footage from every officer on the scene
that day. Both of her arguments fail.
As to her first contention, nothing in our precedent
mandates that a plaintiff stipulate that a video is authentic for the
district court to properly consider it. All that is required is that its
authenticity is not challenged. Horsley v. Feldt, 304 F.3d 1125, 1134
(11th Cir. 2002). She has not done so. She did not argue below and
9 In fairness to Mrs. Swinford, we issued our opinion in Baker after she
submitted her initial brief.
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has not argued on appeal that âthe footage has been altered in any
way,â nor does she contend âthat what the footage depicts differs
from what actually happened.â Baker, 67 F.4th at 1277.
As to her second contention regarding the video footage
being incomplete, Mrs. Swinford relies on our decision in Horsley,
wherein we determined that the district court could not consider
transcript excerpts from a CNN broadcast attached to the
defendantâs motion to dismiss in a defamation case because the
excerpts âdid not contain the statements the complaint insist[ed]
that [the defendant] madeâ and that âfor all we kn[e]wâ those
statements were intentionally left out of the excerpts that the
defendant selected. Horsley, 304 F.3d at 1135. We face a very
different situation here. While the defendantsâ bodycam videos
may be âincompleteâ in the sense that they do not show every
angle of Thomasâs death or the hours of footage leading up to his
death, they clearly show unedited footage of the event underlying
Mrs. Swinfordâs excessive force claim. Accordingly, the district
court did not err in concluding that the video footage was
authentic.
Because the requirements of the incorporation-by-reference
doctrine were met, the district court properly considered the
defendantsâ body camera footage when ruling on the motion to
dismiss. We now assess whether this video footage established that
the officers were entitled to qualified immunity. 10
10 Mrs. Swinford also argues that the district court should have considered the
allegations in her proposed amended complaint, as opposed to the allegations
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2. The individual officers are entitled to qualified immunity.
Qualified immunity shields government employees from
suit against them in their individual capacities for discretionary
actions they perform in carrying out their duties. Brooks v. Miller,
78 F.4th 1267, 1279 (11th Cir. 2023). To determine whether
qualified immunity applies, we engage in a burden-shifting
analysis. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The
first step requires a defendant to show that he was acting within
the scope of his discretionary authority when committing the
challenged act. Id. âOnce the defendant does that, the burden
shifts to the plaintiff, who must show that qualified immunity is
not appropriateâ by establishing: â(1) the defendant violated a
constitutional right, and (2) that constitutional right was âclearly
in the initial complaint, in ruling on the motion to dismiss. Her contention is
incorrect. The initial complaint was the operative complaint in this case and
was the complaint that the defendants moved to dismiss. It is true that Mrs.
Swinford sought the courtâs leave to amend her complaint and attached a
proposed amended complaint. She sought the courtâs permission because
more than twenty-one days had passed since defendants filed their motion to
dismissâindeed, more than four months had passedâand therefore she could
no longer amend her complaint as a matter of course. See Fed R. Civ. P.
15(a)(1)(B). Thus, Mrs. Swinfordâs filing of a proposed amended complaint did
not operate to replace her initial complaint without leave first being given by
the district court. Because the district court chose to rule on the merits of
defendantsâ motion to dismiss, it was required to consider the allegations in
the initial complaint, not the proposed amended complaint. And, as discussed
in more detail above, the district court subsequently ruled on her motion to
amend, properly determining based on defendantsâ bodycam footage that no
constitutional violation occurred and therefore any amendment would be
futile.
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establishedâ at the time of the defendantâs actions.â Brooks, 78 F.4th
at 1280 (citing Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022)).
âCourts have âdiscretion to decide which of the two prongs of the
qualified-immunity analysis to tackle first.ââ Id. (alterations
adopted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
Mrs. Swinford concedes on appeal that the individual
officers were acting within their respective discretionary authority
when they shot Thomas. Accordingly, she must establish both that
the individual officers violated Thomasâs constitutional rights and
that the right was clearly established at the time of the officersâ
actions. We begin and end our qualified immunity analysis by
addressing the first requirement.
The Fourth Amendment provides a âright of the people to
be secure in their persons . . . against unreasonable . . . seizures.â
U.S. Const. amend. IV. This right âencompasses the plain right to
be free from excessive force.â Lee, 284 F.3d at 1197. Excessive force
claims are judged under the Fourth Amendmentâs objective
reasonableness standard. Graham v. Connor, 490 U.S. 386, 395â96
(1989). âThat standard requires us to ask âwhether the officerâs
conduct was objectively reasonable in light of the facts confronting
the officer.ââ Patel v. City of Madison, 959 F.3d 1330, 1338â39 (11th
Cir. 2020) (alterations adopted) (quoting Vinyard v. Wilson, 311 F.3d
1340, 1347 (11th Cir. 2002)). Accordingly, we must âexamine the
totality of the circumstances, âincluding the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether the suspect is actively
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resisting arrest or attempting to evade arrest by flight.ââ Baker, 67
F.4th at 1279 (alterations adopted) (quoting Graham, 490 U.S. at
396). âOther considerations are the need for the application of
force, the relationship between the need and the amount of force
used, the extent of the injury inflicted, and whether the force was
applied in good faith or maliciously and sadistically.â Id. We have
held that deadly force is reasonable when an officer:
(1) has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the
oďŹcer or to others or that he has committed a crime
involving the inďŹiction or threatened inďŹiction of
serious physical harm; (2) reasonably believes that the
use of deadly force was necessary to prevent escape;
and (3) has given some warning about the possible
use of deadly force, if feasible.
Hunter v. Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (emphasis
added) (quoting Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th
Cir. 2005)).
Based on our precedent and the contents of the defendantsâ
body camera footage, we conclude that the individual officersâ use
of deadly force was reasonable in light of the circumstances they
faced. Once Thomas approached some of the officers and pointed
his gun at them, the individual officers clearly had probable cause
to believe that he posed a serious threat to the officers on scene.
Accordingly, they did not use excessive force in shooting Thomas.
Mrs. Swinford makes four arguments as to why we should
reach a different conclusion, none of which are convincing. First,
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22-13675 Opinion of the Court 21
she argues that statements that the officers made after the shooting
expressing regret establishes a doubt as to their probable cause. But
these after-the-fact statements are irrelevant to the inquiry of
whether the officers had probable cause. Cf. Patel, 959 F.3d at 1339
(explaining that âwe must be careful not to Monday-morning
quarterbackâ the reasonableness of an officerâs use of force). As
discussed above, the defendantsâ body camera footage clearly
established that they had probable cause to believe Thomas posed
a threat to the lives of the officers on the scene. Thus, her first
argument fails.
Second, Mrs. Swinford argues that even assuming the
officers had probable cause to believe Thomas posed a threat when
he raised his gun, this probable cause dissipated once the first shot
was fired because Thomas immediately began to fall. According to
her version of events, the initial shot was a separate and distinct
event followed by other officers firing additional shots after
Thomas was already on the ground with his gun out of reach. In
making this argument she relies on our decision in Hunter, where
we determined that an officer was not entitled to qualified
immunity at summary judgment for firing a second round of seven
shots after his initial round of three shots caused the suspect to drop
his firearm and obey the officersâ commands. 941 F.3d at 1279â80.
The problem for Mrs. Swinford is the body camera footage
shows an entirely different series of events than what she describes.
Although Mrs. Swinford describes a separate round of fire after
Thomas is already incapacitated on the ground, the footage clearly
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22 Opinion of the Court 22-13675
shows that there was only one round of fire from the officers that
lasted approximately four seconds in total, not two distinct rounds
of fire. â[W]here a video is clear and obviously contradicts the
plaintiffâs alleged facts, we accept the videoâs depiction instead of
the complaintâs account and view the facts in the light depicted by
the video.â Baker, 67 F.4th at 1277â78 (internal citation omitted).
Thus, the events are starkly different from Mrs. Swinfordâs
recitation, which she makes in an attempt to bring this case within
the confines of Hunter. Unlike the officer in Hunter, the officers in
the instant case began firing simultaneously and ceased firing
shortly thereafter. Once Thomas was on the ground, officers
approached him and began administering first aid. They never
opened fire a second time like the officer in Hunter. Accordingly,
Hunter does not help her case.
We now turn to Mrs. Swinfordâs third argument. She argues
that Thomas was not âwarned of [the officersâ] intention to use
deadly force . . . as he paced outside his vehicle.â But we have never
held that an officer must always warn someone of his intent to use
deadly force. Davis v. Waller, 44 F.4th 1305, 1315 (11th Cir. 2022)
(â[W]e have declined to fashion an inflexible rule that, in order to
avoid civil liability, an officer must always warn his suspect before
firingâparticularly where, as here, such warning might easily have
cost the officer his life.â (quotations omitted)), cert. denied, 143 S.
Ct. 2434 (2023). And there is no indication that the officers
intended to use deadly force as their interaction began with
Thomas pacing outside his vehicle. Indeed, the officers continued
to instruct him to put down his firearm and told him they were
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22-13675 Opinion of the Court 23
concerned for his well-being. The officers did not use deadly force
until Thomas raised his gun in their direction. At that point it was
not feasible for them to warn Thomas because they were forced to
act. Given the circumstances and the split second that officers had
to decide whether to fire their weapons, we find no error in the
officersâ failure to verbally warn Thomas that they would open
fire. 11
Mrs. Swinfordâs final argument is that the district court erred
in conducting the qualified immunity analysis in a collective
manner rather than looking at each of the officersâ individual
actions as viewed from their respective vantage points. It is true
that âeach defendant is entitled to an independent qualified-
immunity analysis as it relates to his or her actions and omissionsâ
and thus courts âmust be careful to evaluate a given defendantâs
qualified-immunity claim, considering only the actions and
omissions in which that particular defendant engaged.â Alcocer v.
Mills, 906 F.3d 944, 951 (11th Cir. 2018). Unfortunately for Mrs.
Swinford, however, she invited this error by continually referring
to the officersâ actions collectively, rather than individually, and she
failed to preserve such an argument for appeal because she did not
raise it in opposing the motion to dismiss. F.T.C. v. AbbVie Prods.
LLC, 713 F.3d 54, 65 (11th Cir. 2013) (âIt is a cardinal rule of
11 Further supporting our conclusion on this issue is the fact that officers
repeatedly instructed Thomas to drop his gun, all while having their own
weapons drawn and pointed at Thomas. It would defy common sense to
believe that Thomas did not know that the officers would open fire on him if
he pointed his gun at them.
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24 Opinion of the Court 22-13675
appellate review that a party may not challenge as error a ruling
invited by that party.â (quotations and ellipses omitted)).
When Mrs. Swinford filed her complaint, she brought her
excessive force claim against the officers based on their collective
actions, rather than individually. Accordingly, the individual
officers argued in their motion to dismiss that all of them were
entitled to qualified immunity based on the contents of the body
camera footage. In opposing the motion to dismiss, Mrs. Swinford
never argued that the officersâ actions had to be assessed on an
individualized basis and instead continued to refer to the officers as
a group arguing that their collective actions did not entitle them to
qualified immunity. 12 The first time that she argued to the district
court that the officersâ actions had to be assessed individually was
when she filed her motion to reconsider. The district court
declined to consider this argument, and the late raising of the issue
did not preserve the argument for appeal. Accordingly, we will not
consider it. 13 See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957â
58 (11th Cir. 2009) (refusing to consider an argument raised for the
first time to the district court in a motion to reconsider).
12 For example, Mrs. Swinford argued below that âACCPD Officers shot
Thomas in the absence of a threat because he had nothing but a BB gun, as
opposed to ACCPD Officers who were shielded by coverâ and âACCPD shot
many times after Thomas had dropped the gun out of reach and fallen on his
face.â
13 Even if we were to consider such an argument, Mrs. Swinford does not
explain how an individualized inquiry would have changed the outcome of
the qualified immunity analysis for any of the officers.
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22-13675 Opinion of the Court 25
Because we conclude that the officers did not use excessive
forceâand thus did not commit a constitutional violationâthey
are entitled to qualified immunity, and we end our qualified
immunity analysis. Furthermore, because we determine that no
underlying constitutional violation occurred, Thomasâs
supervisory liability claim against the chief of police and his Monell
claim against the county fail as a matter of law. Paez v. Mulvey, 915
F.3d 1276, 1291 (11th Cir. 2019) (â[B]ecause [the officers]
committed no constitutional violations, their supervisors . . .
cannot be found liable . . . for violating § 1983.â); City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (noting that the city of Los
Angeles and the Police Commission could not be held liable under
§ 1983 if the individual officer âinflicted no constitutional injuryâ
on the plaintiff).
B. Motion to Amend
We now turn to Mrs. Swinfordâs argument that the district
court erred in denying her motion to amend the complaint, which
would have dropped her references to the body camera footage
and added a claim alleging a violation of the ADA, 42 U.S.C.
§ 12112(a), against the county. Rule 15(a)(2) of the Federal Rules
of Civil Procedure provides that when, as here, a party cannot
amend its complaint as a matter of course under Rule 15(a)(1), it
may âamend its pleading only with the opposing partyâs written
consent or the courtâs leave.â Fed. R. Civ. P. 15(a)(2). â[A] district
court may properly deny leave to amend the complaint . . . when
such amendment would be futile.â Hall v. United Ins. Co. of Am.,
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26 Opinion of the Court 22-13675
367 F.3d 1255, 1262â63 (11th Cir. 2004). Amendment would be
futile when a proposed amended complaint would still be
dismissed. Id.
Mrs. Swinford argues in a conclusory manner on appeal that
the district court erred in denying her leave to amend because
(1) she filed a motion to amend her complaint before the trial court
issued an order on the motion to dismiss; (2) the district court cited
to the original complaint in deeming that her proposed amended
complaint was futile; and (3) the district based its finding of futility
on the body camera footage that defendants attached to their
motion to dismiss. Her arguments fail. To start, as discussed in
footnote 10, the district court cited to the original complaint
because it was ruling on defendantsâ motion to dismiss and the
original complaint was the operative complaint. And in ruling on
the motion to dismiss, the district court properly considered the
defendantsâ body camera footage which established that the
officers had not violated Thomasâs constitutional rights.
Accordingly, the district court properly concluded that any
amendment to Mrs. Swinfordâs claims of excessive force would be
futile because the video evidence established no constitutional
violation had occurred. Thus, we find no error in the district
courtâs futility determination.14
14 In arguing that the district court erred in denying her leave to amend, Mrs.
Swinford does not mention her proposed ADA claim. However, she did argue
in another section of her brief that the district court erred in âdismissingâ this
claim because it overlooked statements made by the chief of police to the
effect that the police had an SRTâwhich was tasked with handling individuals
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22-13675 Opinion of the Court 27
C. Motion to Reconsider
Finally, Mrs. Swinford argues that the district court
committed manifest error in denying her motion to reconsider.
Her entire argument on this point is that the district court failed to
properly apply our decision in Hunter to the facts of this case in
ruling on the motion to dismiss. As we explained above, however,
Hunter is factually distinct from the instant case and does not
control. Accordingly, we find no error under our abuse of
suffering mental health crisesâand was aware of Thomasâs history of
threatened suicides. She also points to allegations in the proposed amended
complaint that the chief of police was the countyâs designated official and
policymaker. Thus, Mrs. Swinford contends that she was entitled to an
inference that the police department had a policy behind the actions that led
to Thomasâs death.
Setting aside the fact that the district court never dismissed Mrs. Swinfordâs
ADA claimâbecause no ADA claim was in the original complaintâwe find
no error in the district courtâs determination that she failed to state a viable
ADA claim in her proposed amended complaint. The district court
determined that Mrs. Swinford failed to âallege sufficient facts to support [an
inference that the chief of police] had actual knowledge that ACCPDâs
dispatch program discriminated against mentally ill individuals in deciding
whether to deploy [the SRT] or that he failed adequately to respond.â On
appeal, she does not make any argument as to why this determination was
incorrect. Accordingly, she has waived any argument to this effect. Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
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28 Opinion of the Court 22-13675
discretion review of the district courtâs order denying Mrs.
Swinfordâs motion to reconsider.
IV. Conclusion
For the reasons above, we conclude that the district court
properly considered the body camera footage when ruling on the
defendantsâ motion to dismiss under our incorporation-by-
reference doctrine and properly granted qualified immunity to the
individual officers. Furthermore, we find no error in the district
courtâs denial of Mrs. Swinfordâs request for leave to amend her
complaint or its order denying her motion for reconsideration.
Accordingly, we affirm the district courtâs orders.
AFFIRMED.
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22-13675 Calvert, J., Concurring 1
CALVERT, District Judge, Concurring:
During the pendency of this appeal, other panels of this
Court decided Baker v. City of Madison, Alabama, 67 F.4th 1268, 1277
(11th Cir. 2023), which held that the incorporation-by-reference
doctrine applies to police body camera footage, and Johnson v. City
of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024), which held that the
incorporation-by-reference doctrine does not require the
complaint to refer to the document at issue or to attach it. Under
the prior panel precedent rule, this panel is bound by these rulings,
and accordingly I join the majority opinion in full.1 United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
As a district judge who regularly handles motions to dismiss
raising qualiďŹed immunity, I write separately to point out some
practical issues with applying the incorporation by reference
doctrine to body camera footage within the motion to dismiss
framework, and oďŹer some guidance on resolving them.
When reviewing a motion to dismiss, we are instructed to
âaccept[] the facts alleged in the complaint as true and draw[] all
reasonable inferences therefrom in the plaintiďŹâs favor.â Chesser v.
Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). In the case of
1 If not bound by Baker and Johnson, I would have further explored Judge
Brasherâs cogent concerns about expanding the incorporation by reference
doctrine to cover audiovisual evidence. J.I.W. by & through T.W. v. Dorminey,
No. 21-12330, 2022 WL 17351654, at *8 (11th Cir. Dec. 1, 2022) (Brasher, J.,
concurring) (âI donât believe the doctrine of incorporation by reference is as
simple as the parties believe it to be.â).
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2 Calvert, J., Concurring 22-13675
incorporation by reference involving a document, this is
straightforward. The parties can dispute what a given clause was
intended to mean, but there is generally no dispute as to what the
document says. In the paradigmatic example of a contract, the
district court determines whether the well-pleaded allegations of
the complaint constitute a breach of the incorporated contract.
But when a video is incorporated by reference, Baker
instructs that âwe accept the videoâs depiction instead of the
complaintâs account . . . and view the facts in the light depicted by
the video.â 67 F.4th at 1278 (citations omitted). Unlike a document,
a video can depict numerous subjects moving independently at
varying distances and speaking over each other at varying degrees
of audibility. When there are multiple videos providing diďŹerent
viewpoints of the same event, the task is even more complicated.
At the motion to dismiss stage, the district court usually has
only a complaint, the videos, and the partiesâ briefs, the latter of
which by design are structured around competing narratives and
theories of the case and thus do not neatly map to each other.
Compare this with the more orderly summary judgment
framework where the parties would have been required to
organize their arguments as to the contents of the videos into
discrete factual assertions, permitting the district court to engage
in the more familiar process of disregarding portions of the record
not cited and focusing on whether the record actually supports a
given factual assertion. Fed. R. Civ. P. 56(c).
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22-13675 Calvert, J., Concurring 3
Turning to this case, unmoored from the framework of the
summary judgment process, the district court below was
essentially forced to transcribe the footage and cite directly to
portions of the video in formulating its opinion. To do so required
some degree of editorial judgment with no opportunity for the
parties to weigh in on what made the âďŹnal cut.â
While motions to dismiss governed by Baker and Johnson do
not require conversion to summary judgment, my read of those
cases is that they do not foreclose conversion as an exercise of
discretion. Exercising this discretion will often lead to a more
orderly presentation of the merits and facilitate appellate review.
Any concerns about subjecting a defendant to discovery prior to a
ruling on the motion can be avoided by sharply narrowing the
scope of discovery to those issues necessary for resolution of the
converted motion under Federal Rule of Civil Procedure 26(b) and
(c).