Randall R. Prevatt v. City of Gainesville, Florida, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11081
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00145-MW-GRJ
RANDALL R. PREVATT,
Plaintiff - Appellant,
versus
CITY OF GAINESVILLE, FLORIDA,
A municipal corporation,
JEREMIAH KELLY,
In individual capacity,
DANIEL ABBOTT,
In individual capacity,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
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(August 8, 2016)

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Before WILLIAM PRYOR, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Randall Prevatt appeals the district court’s order granting summary
judgment in favor of Defendants Corporal Jeremiah Kelly and Officer Daniel
Abbott (“Defendant Officers”) in Plaintiff’s 42 U.S.C. § 1983 civil action.1
Plaintiff contends that Defendant Officers used excessive force in violation of the
Fourth Amendment. No reversible error has been shown; we affirm.
This appeal arises out of an incident that occurred on 2 January 2013.
Viewed in the light most favorable to Plaintiff, these facts are pertinent.2 On the
day of the incident, Plaintiff was moving (on foot) his personal belongings from a
room he had been renting to a nearby temporary campsite. Earlier that morning,
Plaintiff had consumed 12 beers. He says that he might have been “drunk” when
he encountered Defendant Officers. Shortly after 2pm, Plaintiff walked down a
public sidewalk along a busy street, close to an elementary school. Plaintiff was
1 Plaintiff has abandoned expressly his section 1983 claim for excessive force against the City of
Gainesville. Plaintiff also raises no challenge to the district court’s refusal to exercise
supplemental jurisdiction over Plaintiff’s state law claims for battery and for negligent
supervision.
2 Contrary to Plaintiff’s argument on appeal, the record demonstrates that the district court
construed properly all genuinely disputed material facts in the light most favorable to Plaintiff.

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carrying a 30-inch air rifle pistol (designed for shooting BBs) in his left hand and
two 8-inch kitchen knives in his right hand.
Meanwhile, Defendant Officers received notice of at least two 911 calls
reporting that a man was walking near an elementary school with what appeared to
be an assault rifle.3 Shortly after receiving the 911 calls, Defendant Officers found
Plaintiff and saw that Plaintiff was carrying what looked like a rifle in his left
hand.
The encounter between Defendant Officers and Plaintiff was captured by a
security camera.4 Defendant Officers pulled up behind Plaintiff and came out of
their patrol car with their guns drawn. Defendant Officers ordered Plaintiff to drop
his gun. Plaintiff turned to face Defendant Officers and immediately tossed his
gun on the ground. Defendant Officers then saw the knives in Plaintiff’s right
hand and ordered Plaintiff to drop the knives; Plaintiff complied.
Defendant Officers then ordered Plaintiff to put his hands in the air and to
get on the ground. Instead of complying immediately, however, Plaintiff turned
around and took three to four steps away from Defendant Officers. In response,
Defendant Officers began running toward Plaintiff. Plaintiff then stopped and
3 The district court took judicial notice that this incident took place less than three weeks after the
mass shootings at Sandy Hook Elementary School in Newtown, Connecticut. The district court
also noted that on the date of this incident the local elementary school was closed for winter
break, although no officer involved in this stop knew the school was closed.
4 We note, however, that the surveillance video contains no audio component.

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raised his hands above his head. Almost simultaneously, Defendant Officers --
who were already approaching Plaintiff at full speed -- made contact with Plaintiff,
shoving Plaintiff in the back, causing Plaintiff to fall face-first onto the sidewalk.
Plaintiff suffered serious injuries as a result. The entire encounter (from the time
Defendant Officers exited their patrol car to the time Plaintiff was knocked to the
ground) lasted about 11 seconds.
Plaintiff filed this civil action against Defendant Officers individually,
alleging that Defendant Officers used excessive force (in violation of the Fourth
Amendment) when they shoved Plaintiff to the ground. The district court granted
Defendant Officers’ motion for summary judgment: a motion based on an assertion
of qualified immunity.
We review de novo a district court’s 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).
When a video recording exists of the pertinent events -- as in this case -- we
“view[] the facts in the light depicted by the videotape.” Scott v. Harris, 127 S. Ct.
1769, 1776 (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

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have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). To
avoid summary judgment based on qualified immunity, Plaintiff must show both
that Defendant Officers violated a federal right and that the right was already
clearly established when Defendant Officers acted. See id. The doctrine of
qualified immunity, when applied properly, “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). “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).
“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) (quotations
omitted). The right is highly contextualized: the right must be judged in the light
of the particular situation. An officer’s use of force is unconstitutionally excessive
only if the force used was “objectively [un]reasonable in light of the facts and

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circumstances confronting” the officer. Graham v. Connor, 109 S. Ct. 1865, 1872
(1989) (quotations omitted).
“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
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. Antonlini, 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. Given the right is fact sensitive, predicting whether the right has been
violated in any particular case is often difficult because all and so many different
facts must be weighed in the balance.
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

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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 Plaintiff, shows that
Defendant Officers acted objectively reasonably when they pushed Plaintiff to the
ground. Defendant Officers -- responding to at least two 911 calls from concerned
citizens -- had just encountered Plaintiff walking along a busy street in a populated
area, within 30 feet of an elementary school, and armed with two knives and what
Defendant Officers believed reasonably to be an assault rifle.5 Given these
circumstances -- even in the absence of evidence that Plaintiff had made express
threats of violence -- an objective officer could have suspected reasonably that
Plaintiff had committed (or was about to commit) a serious crime.
Although Plaintiff complied with Defendant Officers’ orders to drop his
weapons, Plaintiff failed to obey immediately the officers’ commands to put his
hands in the air and to get on the ground. Instead, Plaintiff turned around and
began walking away from Defendant Officers. Given Plaintiff’s seemingly
noncompliant behavior -- and given the possibility that Plaintiff still possessed
additional weapons -- an objective officer in Defendant Officers’ position could
have believed reasonably that Plaintiff still posed a threat of serious injury to the
5 That Plaintiff’s gun in fact turned out to be a BB gun is not important. The reasonableness of
force used is not judged “with 20/20 vision of hindsight.” See Graham, 109 S. Ct. at 1872.
Because Plaintiff’s gun appeared to be made of black metal and contained no obvious markings
distinguishing it from an actual firearm, it was reasonable for Defendant Officers to believe the
gun was real and to respond accordingly.

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officers and to bystanders and that Plaintiff was attempting to evade arrest. Faced
with a “tense, uncertain, and rapidly evolving” situation, Defendant Officers made
a split-second decision to force Plaintiff to the ground in an attempt to gain control
of the situation and to avoid the risk of serious injury. Under these circumstances,
we cannot say that Defendant Officers’ decision to use non-lethal force was
unreasonable in the Fourth Amendment sense.
In support of his claim of excessive force, Plaintiff relies on several
decisions, all of which involve the use of force against a suspect who had either
already submitted to police authority or who was already handcuffed.6 In this case,
however -- at the moment Defendant Officers decided to use force against Plaintiff
-- Plaintiff was not handcuffed and had not submitted clearly to Defendant
Officers’ authority. That Plaintiff raised his hands in the air less than one second
before Defendant Officers struck Plaintiff, does not render Defendant Officers’
initial decision to use force constitutionally unreasonable under these
circumstances.
6 See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (single punch to stomach of
non-resisting, handcuffed suspect constituted excessive force); Lee v. Ferraro, 284 F.3d 1188,
1198 (11th Cir. 2002) (involving use of force against plaintiff after plaintiff was arrested and
handcuffed); Slicker v. Johnson, 215 F.3d 1225, 1233 (11th Cir. 2000) (involving use of force
against non-resisting, handcuffed suspect); Priester v. City of Riviera Beach, 208 F.3d 919, 927-
28 (11th Cir. 2000) (affirming denial of qualified immunity where officers ordered police dog to
attack plaintiff after plaintiff submitted to arrest); Smith v. Mattox, 127 F.3d 1416 (11th Cir.
1997) (involving use of force while handcuffing suspect who had “docilely submitted to arrest”).

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Plaintiff contends that he intended to comply with Defendant Officers’
orders to get on the ground, but was delayed in doing so by his arthritic leg.
Accepting Plaintiff’s version of the facts as true -- and considering that Plaintiff
said nothing to Defendant Officers either about his willingness to comply or about
his physical impairment and that Plaintiff was not visibly limping -- it was
reasonable for Defendant Officers to perceive Plaintiff’s delay as a sign of
intentional noncompliance.7
Plaintiff has failed to establish that Defendant Officers’ use of force
constituted a violation of his Fourth Amendment rights. Moreover, it was not
already clearly established -- such that the question was “beyond debate” -- at the
time Defendant Officers acted in 2013 that the amount of force used to subdue
Plaintiff under the circumstances of this case was constitutionally excessive.
Defendant Officers are entitled to qualified immunity.
AFFIRMED.
7 We also reject Plaintiff’s assertion that he was given inadequate time to comply with Defendant
Officers’ commands before being subjected to force. The officers’ decision to use force was
made not because Plaintiff failed to comply timely but because Plaintiff appeared to take
affirmative steps (turning and walking away) to avoid compliance with Defendant Officers’
orders.

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