Court of Appeals for the Eleventh Circuit Cases

Joshua Paul English v. Officer Jonathan Fowler

75 F.4th 1151 • 2023-07-27

Citation75 F.4th 1151

Date Filed2023-07-27

Docket22-10927

Cited28 times

StatusPublished

Full Opinion (html_with_citations)

USCA11 Case: 22-10927 Document: 52-1 Date Filed: 07/27/2023 Page: 1 of 10

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 22-10927
____________________

JOSHUA PAUL ENGLISH,
as Surviving Parent of Adam Paul English, Deceased,
LAURA LEAH KING,
as Surviving Parent of Adam Paul English, Deceased,
MIKE HINTON,
Administrator of the Estate of Adam Paul English,
Plaintiﬀs-Appellees,
versus
THE CITY OF GAINESVILLE,

Defendant,
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2 Opinion of the Court 22-10927

OFFICER JONATHAN FOWLER,
OFFICER JOSE HERNANDEZ,

Defendants-Appellants.

____________________

Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:20-cv-00147-RWS
____________________

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and
COOGLER,* Chief District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal invites us to decide whether two police oﬃcers
who fatally shot a suspect are entitled to summary judgment based
on qualiﬁed and oﬃcial immunity. The district court denied sum-
mary judgment because it determined that the record raised a gen-
uine issue of material fact. Because we lack appellate jurisdiction
over a denial of qualiﬁed or oﬃcial immunity that turns on issues
of evidentiary suﬃciency, we dismiss this appeal for lack of juris-
diction.

* Honorable L. Scott Coogler, Chief United States District Judge for the North-
ern District of Alabama, sitting by designation.
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22-10927 Opinion of the Court 3

I. BACKGROUND
On September 20, 2019, a medical assistant in Gainesville,
Georgia, was sitting at her desk when she heard a gunshot. She
looked out her window and saw a man pointing a gun at himself
and at cars passing by on Jesse Jewell Parkway. Someone in the of-
ﬁce called 911.
Several police oﬃcers from the Gainesville Police Depart-
ment, including Jonathan Fowler and Jose Hernandez, responded
to the call around 4:30 p.m. While en route to the scene, both of-
ﬁcers heard the dispatcher say that hospital security guards had the
suspect held at gunpoint. Fowler also heard that the suspect had
discharged a round from his ﬁrearm.
The oﬃcers found the suspect, Adam Paul English, standing
in a median outside a doctor’s oﬃce. The median was in a high-
traﬃc area—in front of a parking deck, across the street from a
hospital, and adjacent to Jesse Jewell Parkway, which was busy with
rush-hour traﬃc. Fowler ﬁrst saw English bent over at the waist
with his right hand in a bag on the ground. Hernandez saw English
holding a bag. Neither oﬃcer saw English holding a gun or other-
wise saw a gun on his person.
A group of oﬃcers, including Fowler and Hernandez, exited
their vehicles and drew their guns. Hernandez approached with a
handgun. Fowler joined with a shotgun. Fowler activated his body
camera, as did another oﬃcer. Hernandez’s dash camera also rec-
orded the encounter.
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4 Opinion of the Court 22-10927

The oﬃcers approached while shouting commands that
English show and raise his hands. English’s right hand was not vis-
ible to the oﬃcers. And English failed to comply with the oﬃcers’
orders. Hernandez warned English that he might be shot if he did
not comply. At some point during the approach, the dispatcher
communicated that English put the gun into a bag. Fowler testiﬁed
that he did not hear this communication because he was simulta-
neously shouting commands at English. The bag was on the
ground at English’s feet as the oﬃcers approached.
Fowler and Hernandez testiﬁed that shortly after initiating
their approach, they saw English make a sudden movement. Fowler
testiﬁed that he saw English make “a hurried movement towards
us moving his hand and his right shoulder towards us.” Fowler be-
lieved that English had a ﬁrearm in his hand or waistband and that
“when he made that movement, he was drawing it out to ﬁre it.”
Hernandez testiﬁed that he saw English make “a direct steady
movement with his right hand towards the right side of his hip.”
Both officers fired shots. Fowler fired once and Hernandez
fired eight times. English died from his wounds. Officers later re-
covered a gun from inside the bag.
English’s survivors and the administrator of his estate sued
Fowler and Hernandez. Their complaint alleged claims of excessive
force under the Fourth Amendment, see

42 U.S.C. § 1983

, and bat-
        tery and negligence under Georgia law. And it demanded money
        damages.
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        22-10927                Opinion of the Court                           5

               Both officers moved for summary judgment. They argued
        that they are entitled to qualified immunity from the claim of ex-
        cessive force. They also argued that they are entitled to official im-
        munity under Georgia law from the claims of battery and negli-
        gence.
                The district court denied the oﬃcers’ motions. It concluded
        that the oﬃcers were not entitled to qualiﬁed immunity against the
        claim of excessive force because a reasonable jury could ﬁnd that
        the oﬃcers violated a clearly established constitutional right. The
        district court also determined that the oﬃcers were not entitled to
        oﬃcial immunity because a reasonable jury could ﬁnd that the of-
        ﬁcers lacked any justiﬁcation to ﬁre their guns at English.
                Video footage from the encounter is unclear as to the exist-
        ence or extent of English’s movement. The oﬃcers testiﬁed that
        they saw English make a quick movement as if to reach for a gun,
        but the district court found that “the videos leave that conclusion
        up for interpretation.” Oﬃcer Fowler also acknowledged that
        “[t]he poor video quality does not show the suspect’s movement
        clearly.”
                           II. STANDARDS OF REVIEW
               We review de novo whether the oﬃcers are entitled to sum-
        mary judgment based on immunity. Townsend v. Jeﬀerson Cnty.,

601 F.3d 1152, 1157

 (11th Cir. 2010) (qualiﬁed immunity); Hoyt v. Cooks,

672 F.3d 972, 981

 (11th Cir. 2012) (oﬃcial immunity). We review
        jurisdictional issues de novo. Cavalieri v. Avior Airlines C.A.,

25 F.4th 843

, 848 (11th Cir. 2022)
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        6                       Opinion of the Court                   22-10927

                                  III. DISCUSSION
               We divide our discussion into two parts. First, we explain
        that we lack jurisdiction to review the denial of summary judgment
        based on qualiﬁed immunity. Second, we explain that we lack juris-
        diction to review the denial of summary judgment based on state-
        law oﬃcial immunity.
            A. We Lack Jurisdiction to Review the Denial of Summary Judgment
                              Based on Qualified Immunity.
                “We have a threshold obligation to ensure that we have ju-
        risdiction to hear an appeal, for ‘without jurisdiction we cannot
        proceed at all in any cause.’” Corley v. Long-Lewis, Inc.,

965 F.3d 1222

,
        1227 (11th Cir. 2020) (alterations adopted) (quoting Ex parte
        McCardle,

74 U.S. (7 Wall.) 506, 514

 (1869)). “[A]djudicating an ap-
        peal without jurisdiction would ‘oﬀend fundamental principles of
        separation of powers.’”

Id.

 (alteration adopted) (quoting Steel Co. v.
        Citizens for a Better Env’t,

523 U.S. 83, 94

 (1998)).
               “Whether we have interlocutory jurisdiction to review the
        denial of summary judgment on qualiﬁed immunity grounds de-
        pends on the type of issues involved in the appeal.” Cottrell v. Cald-
        well,

85 F.3d 1480

, 1484 (11th Cir. 1996) (emphasis omitted). An ap-
        peal may raise “legal issues,” such as “whether the legal norms al-
        legedly violated by the defendant were clearly established at the
        time of the challenged actions.” Id. (citation omitted). “[W]e have
        interlocutory jurisdiction over legal issues that are the basis for a
        denial of summary judgment on qualiﬁed immunity grounds.” Id.;
        see Mitchell v. Forsyth,

472 U.S. 511, 530

 (1985). But an appeal may
        also raise issues of “evidentiary suﬃciency.” Cottrell, 85 F.3d at 1484.
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        22-10927                 Opinion of the Court                              7

        Such issues arise when we are asked to determine “whether the dis-
        trict court erred in determining that there was an issue of fact for
        trial about the defendant’s actions or inactions which, if they oc-
        curred, would violate clearly established law.” Id. We lack interloc-
        utory jurisdiction “where the only issues appealed are evidentiary
        suﬃciency issues.” Id.; see Johnson v. Jones,

515 U.S. 304, 313

 (1995)
        (explaining that a district court’s determination that the summary
        judgment record raised a genuine issue of fact concerning defend-
        ants’ actions is not an appealable decision).
                 Some appeals raise questions of both law and fact. When an
        oﬃcial “moves for summary judgment based on qualiﬁed immun-
        ity, a district judge must determine whether there is a genuine issue
        of material fact as to whether the [oﬃcial] committed conduct that
        violated clearly established law.” Koch v. Ru,

221 F.3d 1283

, 1295
        (11th Cir. 2000) (citation and internal quotation marks omitted).
        “This decision involves a two-part analysis: (1) deﬁning the oﬃcial’s
        conduct, based on the record and viewed most favorably to the
        non-moving party, and (2) determining whether a reasonable pub-
        lic oﬃcial could have believed that the questioned conduct was law-
        ful under clearly established law.” Id. (footnote omitted). Our prec-
        edents “establish[] only that a plaintiﬀ may not base an interlocu-
        tory appeal on the district court’s ﬁrst determination by itself.” Id.
        at 1296 (quoting Mencer v. Hammonds,

134 F.3d 1066

, 1070 (11th Cir.
        1998)). “When both core qualiﬁed immunity issues are involved, we
        have jurisdiction for de novo review . . . .” Id.; see also Behrens v. Pelle-
        tier,

516 U.S. 299, 313

 (1996) (explaining that an appeal is precluded
        only “if what is at issue in the suﬃciency determination is nothing
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        8                      Opinion of the Court                  22-10927

        more than whether the evidence could support a ﬁnding that par-
        ticular conduct occurred”).
                The only issues in this appeal are issues of evidentiary suﬃ-
        ciency. In their motions for summary judgment, the oﬃcers argued
        that their use of force was reasonable under the circumstances be-
        cause they encountered a suspect who had brandished a gun, dis-
        charged it at least once, and ignored their commands to show his
        hands. The oﬃcers argued that in the light of these facts, when they
        saw English move, they had actual and probable cause to use deadly
        force on him. But the district court determined that “viewing the
        evidence and the videos in the light most favorable to Plaintiﬀs,” a
        reasonable jury could ﬁnd that the oﬃcers’ use of force was unrea-
        sonable. It reasoned that “though the oﬃcers say that they saw
        [English] make a quick motion as if to reach for a gun . . . the videos
        leave that conclusion up for interpretation.” In other words, the
        district court ruled against the oﬃcers because of a genuine dispute
        of material fact. This is the type of ruling that we lack jurisdiction
        to review. See Johnson,

515 U.S. at 313

.
               The district court also considered the oﬃcers’ argument that
        English’s constitutional right to be free from excessive force in
        these circumstances was not clearly established. The district court
        explained that deadly force is justiﬁed only where a reasonable of-
        ﬁcer would believe that the suspect “posed an immediate threat of
        serious physical harm.” The oﬃcers argued, as they do here, that
        English in fact posed an immediate threat.
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        22-10927               Opinion of the Court                          9

                Again, the district court ruled against the oﬃcers because of
        a genuine dispute of material fact. It determined that “[u]nder
        Plaintiﬀs’ version of the facts, these circumstances did not exist: the
        video evidence showed that Mr. English was not ﬂeeing . . . or re-
        sisting . . . [or] threatening the oﬃcers, himself, or anyone else.” In
        other words, upon reviewing the evidence, “a reasonable jury
        could view the sequence of events diﬀerently than [the oﬃcers]
        said they did.” The district court acknowledged that the oﬃcers
        “contest several of these points” and contend “that they do not ac-
        curately depict the scene as they encountered it.” But the dispute is
        about what the evidence could prove at trial; it is not a dispute
        about principles of law.
                To be sure, the oﬃcers try to cast their arguments as legal
        disputes. But this appeal does not raise questions about whether
        certain undisputed conduct violated the Fourth Amendment or
        whether the law was clearly established. The parties agree that the
        use of deadly force against a non-resisting suspect who poses no dan-
        ger violates a suspect’s Fourth Amendment right to be free from
        excessive force. The dispute is whether English—in fact—posed a
        danger when the shooting occurred. In other words, the only issues
        in this appeal concern what happened at the scene. Those are ques-
        tions of fact, not law.
          B. We Lack Jurisdiction to Review the Denial of Summary Judgment
                             Based on Official Immunity.
                Oﬃcials “may immediately appeal an order denying state of-
        ﬁcial . . . immunity, provided that the applicable state law deﬁnes
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        10                     Opinion of the Court                  22-10927

        the immunity at issue as one from suit instead of from just liabil-
        ity.” Jones v. Fransen,

857 F.3d 843, 849

 (11th Cir. 2017). Georgia law
        deﬁnes its oﬃcial immunity as immunity from suit. Id.; GA. CONST.
        art. I, § II, ¶ IX(d). Thus, we ordinarily have jurisdiction to review
        the denial of state-law oﬃcial immunity. See Jones,

857 F.3d at 850

.
        But as in the qualiﬁed immunity context, we lack interlocutory ap-
        pellate jurisdiction over the denial of summary judgment based on
        state-law immunity where the appeal turns on issues of evidentiary
        suﬃciency. See Ortiz v. Jordan,

562 U.S. 180, 188

 (2011) (explaining
        that “instant appeal is not available . . . when the district court de-
        termines that factual issues genuinely in dispute preclude summary
        adjudication”).
                We lack jurisdiction over this denial of oﬃcial immunity.
        The district court denied summary judgment based on oﬃcial im-
        munity because the evidence “raises a factual question regarding
        whether Mr. English posed an imminent threat to the oﬃcers and
        . . . whether the oﬃcers acted with justiﬁcation.” The district court
        explained that “[t]he evidence could lead a reasonable jury to con-
        clude that [the oﬃcers] lacked any justiﬁcation to ﬁre their guns.”
        In other words, the district court denied summary judgment be-
        cause of a genuine dispute of material fact.
                                IV. CONCLUSION
               We DISMISS the appeal for lack of jurisdiction.