Jean-Baptiste v. Gutierrez (680 F. Supp. 2d 1318, 2010)

OMNIBUS ORDER ADOPTING AND AFFIRMING RECOMMENDATIONS OF MAGISTRATE JUDGE [DE 65]; [DE 66]; [DE 87]; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DE 37]; OVERRULING DEFENDANT’S OBJECTIONS TO MAGISTRATE JUDGE’S REPORTS [DE 79]; [DE 95]; GRANTING DEFENDANT’S MOTION TO STRIKE OBJECTIONS DUE TO AN INADVERTENT FILING [DE 96]

ALAN S. GOLD, District Judge.

THIS CAUSE is before the Court upon Magistrate Judge White’s Report and Recommendations [DE 65] and Supplemental Report and Recommendations [DE 87] (collectively “the Reports”) recommending the denial of Defendant Officer Jose Gutierrez’s Motion for Summary Judgment [DE 37]. Defendant filed Objections to both Reports. See [DE 79] and [DE 95]. Having reviewed the Reports, Defendant’s Objections thereto, and the applicable case law, I agree with the Magistrate Judge insofar as the material facts — as viewed in the light most favorable to the Plaintiff— demonstrate that Officer Gutierrez is not entitled to qualified immunity as a matter of law because he violated Plaintiffs clearly established right to be free from deadly force in a situation that requires less-than-lethal force. Accordingly, I adopt and affirm the Magistrate Judge White’s Recommendations and deny Defendant’s Motion for Summary Judgment.

I. Factual Background

Because the factual background of this case is recounted in great detail in the Magistrate’s Reports, I present only a brief synopsis of the incident giving rise to Plaintiffs claim. During the mid-morning of July 24, 2003, Defendant Gutierrez became engaged in a vehicular pursuit and then a foot chase with suspects, who, based on a police bulletin, were believed to have been involved in an armed home invasion. [DE 87, p. 2]. During the course of the pursuit, Defendant Gutierrez spotted the suspects, one of whom was holding an unknown “blunt object” that Gutierrez figured was a gun. [DE 65, p. 10].

After a foot pursuit, Defendant Gutierrez came upon one of the suspects, the Plaintiff, in the backyard of a residence near a shed, holding what he believed to be a gun. [DE 87, p. 2]. Feeling that he was being ambushed by the Plaintiff, Defendant Gutierrez opened fire on the Plaintiff without warning, discharging his firearm multiple times until he “had completely emptied his magazine,” which contained fourteen rounds of ammunition. [DE 65, p. 11]. The first or second shot struck Plaintiff in the groin area, with subsequent shots hitting him in various other body parts, including his feet and legs. [DE 65, p. 12]; [DE 87, p. 8]. Sworn statements provided by the Plaintiff and an air conditioning technician who took in the events from a nearby rooftop indicate that the first shot to the groin area immediately brought Plaintiff to the ground, and that Officer Gutierrez then “maliciously] and/or sadistically]” fired at least ten more rounds from close range, even after Plaintiff lay incapacitated on the ground and despite the fact that Plaintiffs weapon was approximately “a foot or two away” from him. [DE 87, p. 7]; [DE 65, p. 10]; [DE 1, p. 4]; [DE 37-9, pp. 32-33]. As a result of the gunshot wounds he suffered during the course of this incident, Plaintiff was permanently injured and is now confined to a wheelchair. [DE 1, p. 5].

II. Procedural Background

On July 6, 2007, Plaintiff filed a § 1983 claim against Defendant Gutierrez, claiming that Gutierrez used excessive force against Plaintiff in violation of his clearly established constitutional rights. [DE 1]. Upon filing, the matter was referred to Magistrate Judge White by the Court for, among other things, the issuance of a Report and Recommendation on any dispositive motions. [DE 2]. On June 20, 2008, Defendant moved for summary judgment, asserting that he was entitled to judgment as a matter of law based on the doctrine of qualified immunity. [DE 37]. On February 20, 2009, Magistrate Judge White issued a Report (“the Initial Report”) recommending that Defendant’s motion be denied and that the case be set for trial. See [DE 65]. On April 17, 2009, Defendant objected to the Report. [DE 79]. On September 17, 2009, after considering Defendant’s objections, I entered an Order [DE 85] requesting a Supplemental Report (“the Supplemental Report”) that would address certain legal and factual issues that remained unresolved by the Initial Report. The Supplemental Report [DE 87] was issued on October 28, 2009, and after receiving various extensions of time, Defendant filed his Corrected Objections to the Supplemental Report [DE 95] on January 5, 2010.

III. Standard of Review of a Magistrate Judge’s Decision

Pursuant to Federal Rule of Civil Procedure 72(b), which governs dispositive motions referred to a magistrate judge, “a party may serve and file specific written objections to the proposed findings and recommendations” of a magistrate judge on a dispositive motion “[w]ithin 10 days after being served with a copy of the recommended disposition.” Fed.R.Civ.P. 72(b)(2); see also S.D. Fla. Mag. R. 4(b). If objections are timely filed, the district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. Id. While the standard of review is de novo, a district judge need not re-assess every single finding and determination, for “the statute permits the district court to give to the magistrate’s proposed findings of fact and recommendations ‘such weight as [their] merit commands and the sound discretion of the judge warrants’ ” without violating a party’s due process rights, “so long as the ultimate decision is made by the district court.” U.S. v. Raddatz, 447 U.S. 667, 683, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (citing Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)). Upon review of the magistrate’s decision, the district judge may accept, reject, or modify the recommended disposition, receive further evidence, recall the witnesses, or return the matter to the magistrate judge with instructions. Id. Further, a district judge does not abuse his discretion in either considering or refusing to consider an “argument that was not presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1290-91 (11th Cir.2009).

IV. Analysis

After a thorough review of the record and the applicable law, Magistrate Judge White determined in his Reports that Defendant’s Motion for Summary Judgment should be denied because “the parties’ versions of the facts are at odds [and because] there are issues of material fact in dispute which impact on the questions of the nature of the threat that plaintiff ... posed to the defendant ... [and] the nature and extent of force that was appropriate under the circumstances.” [DE 87, p. 19]. Defendant objects to this conclusion, asserting that a qualified immunity analysis must be undertaken “[w]ith the Plaintiffs best case in hand” and that, as a result, “material issues of disputed fact ... cannot foreclose the grant or denial of summary judgment based on qualified immunity.” [DE 95, p. 3] (quoting Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir.2005)). Defendant also objects on the basis that Magistrate Judge White allegedly failed to shift the burden of proof to Plaintiff to demonstrate a violation of a constitutional right that was clearly established at the time of the subject incident. Id. at 8.

While I agree with Defendant insofar as the existence of a disputed issue of material fact does not ipso facto defeat a summary judgment motion based on qualified immunity, see Robinson, 415 F.3d at 1257 (noting that “material issues of disputed fact are not a factor in the court’s analysis of qualified immunity” because such issues are eliminated when district courts “take the facts in the light most favorable to the party asserting the injury”), I disagree that Defendant is entitled to the protections of qualified immunity given the facts of this particular case.

As Defendant correctly points out, the Eleventh Circuit has instructed district courts to analyze questions of qualified immunity “with the Plaintiffs best case in hand” so that “the court is able to move to the question of whether the defendant committed the constitutional violation alleged in the complaint without having to assess any facts in dispute.” Id. Here, the “best case in hand” consists of Defendant Gutierrez having maliciously and sadistically shot a non-resisting, non-fleeing Plaintiff an additional ten to twelve times from close range after having incapacitated him with an initial shot to the genital-region and after Plaintiffs weapon was no longer within his control. If this “best case in hand” constitutes a violation of Plaintiffs clearly established rights, then Defendant’s motion must be denied. See e.g., Mercado v. City of Orlando, 407 F.3d 1152, 1156-59 (11th Cir.2005) (reversing district court’s grant of summary judgment on qualified immunity grounds because evidence was sufficient such that a reasonable jury could conclude that officer used excessive force in violation of Plaintiffs clearly established constitutional rights when he used a Sage Launcher on an armed but non-resisting Plaintiff who was lying on his kitchen floor).

Claims of excessive force are analyzed under the Fourth Amendment’s “objective reasonableness” standard. Oliver v. Fiorino, 586 F.3d 898, 904-05 (11th Cir.2009). Thus, the critical question that must be answered in this context “is whether the officer’s conduct [was] objectively reasonable in light of the facts confronting the officer.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.2002). Of course, the “ ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (U.S.1989). When determining whether the force used during the course of a seizure is reasonable, courts must give “careful attention to the facts and circumstances of each particular case, including 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.” Id. Additional considerations deemed relevant in this Circuit include “(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted, and (4) whether the force was applied in good faith or maliciously and sadistically.” Sanchez v. Hialeah Police Dep’t, 357 Fed.Appx. 229, 2009 WL 4829872 (11th Cir. Dec. 16, 2009) (citing Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.2008)).

Applying these factors the instant case leads me to conclude that even if the initial use of deadly force was constitutionally permissible, the additional ten to twelve shots fired while Plaintiff lay unarmed on the ground in an incapacitated state constituted a Fourth Amendment violation by Defendant Gutierrez. See Bozeman v. Orum, 422 F.3d 1265 (11th Cir.2005) (indicating that initially justified use of force can become unconstitutional if use of force continues after threat has subsided). Accordingly, I affirm the Magistrate Judge’s finding of a constitutional violation given the facts as viewed in the light most favorable to the Plaintiff.

Because I have determined that Plaintiffs “best case in hand” sets forth a constitutional violation based on Defendant’s use of excessive force, I now address whether the Magistrate Judge correctly concluded that Defendant Gutierrez’s use of excessive force violated a constitutional right that was clearly established at the time of the subject incident (i.e., July of 2003). See Corey Airport Svcs., Inc. v. Decosta, 587 F.3d 1280, 1285 (11th Cir.2009) (articulating two-step qualified immunity analysis). In the context of § 1983 claims, a plaintiff can demonstrate that a constitutional right was clearly established in one of three ways: “First, he can show that a materially similar case has already been decided, giving notice to the police. [Second,] [h]e could ... show that a broader, clearly established principle should control the novel facts in this situation, and [finally, he could show that this case fits within the exception of conduct which so obviously violates that constitution that prior case law is unnecessary.” Mercado, 407 F.3d at 1159.

In the instant case, Magistrate Judge White concluded that the novel facts of this case as viewed in the light most favorable to the Plaintiff implicate “broader clearly established principles” set forth in prior cases involving the use of excessive force. [DE 87, p. 9]. Specifically, the Reports concluded that Defendant’s behavior violated the clearly established principle that “force must be proportionate to [the] need at the time it is applied, and must cease once the need for use of force no longer exists.” Id. at 10 (citing Skrtich v. Thornton, 280 F.3d 1295, 1304 (11th Cir.2002)). Defendant objects to this determination, contending that Magistrate Judge White addressed the issue too broadly given that “every case that considers the appropriate use of force in the context of the Fourth or Eighth Amendments stands for the same exact proposition.” [DE 95, p. 13].

While Defendant is correct insofar as “the principle that officers may not use excessive force to apprehend a suspect is too broad a concept to give officers notice of unacceptable conduct,” Mercado, 407 F.3d at 1159 (citation omitted), Defendant fails to recognize that the clearly established right implicated by Defendant Gutierrez’s actions goes beyond general notions of “excessive force.” Rather, the specific constitutional principle upon which Magistrate Judge White’s determination rests is “that deadly force cannot be employed in a situation that requires less-than-lethal force.” Mercado, 407 F.3d at 1159-60 (citing Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Because binding Eleventh Circuit precedent holds that a citizen’s constitutional right to be free from “deadly force in a situation that clearly would not justify its use” is clearly established, see id., and because Defendant violated that right by maliciously firing ten-plus rounds at the incapacitated and non-resisting Plaintiff who no longer posed a realistic threat or flight risk, I agree with Magistrate Judge Wfliite that the Defendant is not entitled to avail himself of the protections of qualified immunity in this particular case.

V. Conclusion

Based on the foregoing, it is hereby ORDERED AND ADJUDGED that:

1. Magistrate Judge WTiite’s Reports and Recommendations [DE 65]; [DE 66]; [DE 87] are AFFIRMED AND ADOPTED in part.

2. Defendant’s Motion for Summary Judgment [DE 37] is DENIED.

3. Defendant’s Motion to Strike [DE 96] is GRANTED.

4. A separate order will issue setting this matter for trial before the Undersigned.

REPORT OF MAGISTRATE JUDGE

PATRICK A. WHITE, United States Magistrate Judge.

I. Introduction

In this pro se civil rights action, the plaintiff Erlis Jean-Baptiste, a/k/a Erlis Baptiste-Jean, a/k/a Alex Jean Baptiste, has filed a complaint for damages pursuant to 42 U.S.C. § 1983, alleging that on July 23, 2003, the defendant, Miami-Dade Police Officer Jose Rodriguez, used excessive force against him, by shooting him during the course of his arrest. The arrest resulted in plaintiffs conviction on various charges in Miami-Dade criminal case No. F03-020927B, which stemmed from his involvement in an armed home-invasion at the residence of Malcom Duff on the morning of July 23, 2003, shortly before he was apprehended by Officer Rodriguez.

This Cause is before the Court upon defendant Rodriguez’s motion for summary judgment (DE# 37) with multiple exhibits [DE# s 37-3 to 37-23], as to which the plaintiff was advised of his right to respond (see Order of Instructions, DE# 38). The plaintiff filed a Response (DE#49, pp. 1-28, and 31) with multiple exhibits [at DE# s 49, pp. 29-30 and 32; DE# 49, pp. 33-80; and DE# 49-2, pp. 1-114]. Thereafter, defendant Rodriguez filed a Reply (DE# 63, pp. 1-15) with additional exhibits (DE# 63-2).

II. Law Relating to Use of Force, and Qualified Immunity

A claim that a law enforcement officer used excessive force in the course of an arrest, an investigatory stop, or any other seizure of a free citizen is to be analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Vinyard, v. Wilson, 311 F.3d 1340, 1346-47 (11 Cir.2002); Lee v. Ferraro, 284 F.3d 1188, 1197 (11 Cir.2002); Ortega v. Schramm, 922 F.2d 684, 694 (11 Cir.1991). “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. However, “[t]he use of excessive force in carrying out an arrest constitutes a violation of the Fourth Amendment.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11 Cir.2002). To establish such a Fourth Amendment violation, Plaintiff must show (1) that a seizure occurred and (2) that the force the defendants used to carry out that seizure was unreasonable. Harris v. Coweta County, 433 F.3d 807, 812-13 (11 Cir.2005).

The reasonableness inquiry is made from the perspective of a reasonable officer on the scene. The question is whether the defendants’ conduct was objectively reasonable, in light of all the facts and circumstances confronting them without regard to their subjective intent or motivation. Such an analysis requires a court to balance “the nature and quality of the intrusion on the individual’s fourth amendment interests against the importance of the government interest alleged to justify the intrusion.” Graham, supra, quoting United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The factors a Court considers when balancing the necessity for an application of force against an arrestee’s constitutional rights include: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight; Graham, supra, 490 U.S. at 396, 109 S.Ct. 1865; Vinyard, supra, 311 F.3d at 1347; Lee, supra, 284 F.3d at 1197; Ortega, supra, 922 F.2d at 695. In determining whether force applied was “reasonable” under the circumstances (ie., proportional to the need for its use), the Court must examine: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; and (3) the extent of the injury inflicted upon the individual to whom the force was applied. Vinyard, at 1347; Lee at 1198.

The intentional seizure of a person “readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Although it may not always be clear when minimal police interference becomes a seizure, “there can be no question that the apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The Supreme Court and the Eleventh Circuit have recognized that it is constitutionally permissible for an officer to use deadly force when the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. Garner, supra, 471 U.S. at 11, 105 S.Ct. 1694; Carr v. Tatangelo, 338 F.3d 1259, 1268 (11 Cir.2003); Willingham v. Loughnan, 261 F.3d 1178, 1186 (11 Cir.2001).

The Eleventh Circuit, in Carr, supra, 338 F.3d at 1269, (quoting McLenagan v. Karnes, 27 F.3d 1002 (4 Cir.1994)), has held that “a reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983.”

Thus, use of potentially 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 officer or to others’ or ‘that he has committed a crime involving the infliction or threatened infliction 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.” Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11 Cir.2005) (quoting Gamer, supra, 471 U.S. at 11, 105 S.Ct. 1694).

In this matter, the defendant Gutierrez argues that he is entitled to qualified immunity.

The defense of qualified immunity insulates governmental officials from personal liability for actions taken pursuant to their discretionary authority. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Flores v. Satz, 137 F.3d 1275 (11 Cir.1998); Foy v. Holston, 94 F.3d 1528 (11 Cir.1996). If the force applied was reasonable under the circumstances and not excessive, the defendant police officer has not violated any clearly established constitutional right, and is entitled to summary judgment based upon qualified immunity. Moore v. Gwinnett County, 967 F.2d 1495, 1498 (11 Cir.1992), quoting, Leslie v. Ingram, 786 F.2d 1533, 1536 (11 Cir.1986).

III. Discussion

In this case, there is no dispute that, at the time of the events alleged, the defendant police officer Gutierrez was acting within the scope of his discretionary authority. Thus, the question, when drawing inferences in favor of the non-movant/plaintiff, is whether Gutierrez’s actions violated clearly established law.

Defendant Gutierrez has submitted evidence (see Index of Exhibits, at DE# 87-2) which includes, inter alia, records showing Jean-Baptiste’s convictions for offenses committed on July 24, 2003; testimony by plaintiffs co-defendant, Sidney Jean; testimony by Officer Jose Gutierrez who shot Jean-Baptiste; testimony by two MiamiDade Officers (Eleshia Lewis, and Reginald Cross) who had a surprise encounter with Sidney Jean and Erlis Jean-Baptiste on the street, after the home-invasion and before Jean-Baptiste was shot. The record also contains various police reports relating to the home invasion which occurred prior to Jean-Baptiste’s arrest, and relating to Jean-Baptiste’s shooting upon arrest.

Plaintiff Jean-Baptiste has submitted Court records reflecting the offenses with which he was charged, reflecting those charges that were dropped, and reflecting those for which he was acquitted when tried to a jury in Dade Circuit Court. (See Information, DE# 49, at pp. 33 to 42; Jury Instructions, Id., pp. 43-72; and the Jury Verdict in Case F03-20927B, Id., at pp. 73-75). He was charged by Information on Eight Counts: Burglary with Assault or Battery While Armed [Count 1]; Kidnapping with a Weapon [Count 2]; Aggravated Battery with a Deadly Weapon [Count 3]; Robbery using a Deadly Weapon or Firearm [Count 4]; Armed Robbery/CarJacking [Count 5]; Unlawful Possession of a Firearm by a Convicted Felon [Count 6]; Unlawful Possession of a Firearm by a Violent Career Criminal [Count 7]; and Aggravated Assault on a Police Officer [Count 8]. (See DE# 49, pp. 33-42). Counts 1-4 relate to events that occurred inside the Duff residence. (DE# 49, pp. 34-37). Count 5 relates to the taking of Duffs vehicle [the red Dodge Neon] (Id. p. 38). By the time the case reached the jury, the firearm possession charges [Counts 6 and 7, charged at DE# 49, pp. 39-40] were dropped, and the counts were re-numbered so that Count 8 of the Information [Aggravated Assault upon a Police Officer] became Count 6 for purposes of trial and the rendering of verdicts by the jury. (See and compare Information, DE#49 at pp. 33-42, with Jury Verdict Form, DE# 49, pp. 73-75). Count 8 [Count 6 at trial] charged that Erlis Baptiste-Jean allegedly committed aggravated assault upon “Jose Gutierrez, a Law Enforcement Officer engaged in the lawful performance of his duty, by intentionally threatening by word or act to do violence to said victim, coupled by the apparent ability to do so, by POINTING A FIREARM AT OFFICER GUTIERREZ, which created a well-founded fear in said victim that such violence was imminent, with a deadly weapon, to wit: A FIREARM ...” (DE# 49, p. 41).

The record shows that defendant Baptiste-Jean [plaintiff Jean-Baptiste in this § 1983 action] was convicted at trial on Counts 1-5, and that on Count 6 [based on allegedly pointing his gun at Officer Gutierrez, thereby putting him in fear for his life] he was found not guilty of aggravated assault on a police officer, and was not found guilty of the possible lesser included offenses [aggravated assault, assault on a LEO, simple assault]. (DE#49, p. 75).

A Florida DOC record pertaining to Jean-Baptiste, dated June 11, 2008 (DE# 37-3), which was submitted by the defendant, indicates that on that date, some five years after the events alleged, Jean-Baptiste, a Black male, 6'1" tall, weighing 195 lbs, was incarcerated at Dade C.I., serving a 15 year sentence on the Aggravated Battery conviction, and Life sentences on the convictions for armed burglary, kidnapping, armed robbery, and armed carjacking. A copy of the state Circuit Court’s Conviction and Sentence [which was deferred on 5/2/06, was entered on 8/3/06, and filed on 9/12/06] appears in the record at DE# 37-4.

The testimony of Officers Lewis and Cross indicates that they were working as partners on the morning of July 24, 2003, serving eviction papers in the neighborhood near the house where plaintiff Jean-Baptiste was shot and arrested.

Lewis described two suspects, who jumped over a fence, and found themselves in front of her and Cross. The first was 5'6" to 5'7", and had short dread locks, called “de la sols;” and the second man was somewhat heavy set, and “the same size or a little bit taller” that the first. The thin man with the de la sols had something which appeared to be silver in his hand; and the heavy set one “had something in his hand, which was black, and appeared to be a gun.” Lewis testified that she and Cross “drew down” their weapons and ordered the men several times to “drop the gun.” They did not comply, and instead fled South, and jumped back over the fence. Lewis lost sight of the fleeing men and her partner Cross. She heard 5-6 shots. She set up a perimeter, and then went into a back yard, where she saw her partner (Cross) by a shed, and after walking further into the yard, almost to the rear of the shed, she was able to see another officer and a subject on the ground. Lewis then went back to her duties of serving eviction papers, and at an apartment complex saw officers detaining a second subject, who was leaning on the trunk of a police car, and whom she identified as the “skinny guy” she and Cross had seen earlier with something silver in his hand. (DE# 37-11, Sworn Statement by Lewis).

Officer Cross testified that when he and Lewis were serving evictions, he saw two subjects, both Black males, jump over the fence. According to Cross, the larger of the men (described by him as being 5'10" to 5'11", and 230-240 lbs) had gun in his hand. When asked if he could tell what kind of gun it was, Cross said that it was “a black gun, semiautomatic.” Cross was unable to say that the other man (whom he described as being of slighter build-“thin” and perhaps 5'11") was armed. Cross testified that he “drew down” on the armed individual, and asked him several times to drop his gun. Cross testified that “he refused to drop his gun. Then, he turned and jumped back over the fence and fled southbound through the parking lot.” Cross testified that a short time later he heard 5-6 gunshots, that he “ran behind the house” and saw “the subject” was “laying on the ground, face down,” and Officer Gutierrez “was standing over the subject, advising over the radio.” (DE# 37-12, Sworn Statement by Cross, at pp. 3-6).

Among the defendant’s exhibits are a Sworn Statement(DE# 37-5) and a Deposition (DE# 37-6) given by Sidney Jean, who with plaintiff Jean-Baptiste, was involved in the 7/23/03 home invasion, and the. encounter with Officers Lewis and Cross. In his sworn statement, Sidney Jean testified that both he and his accomplice (whom he called “Alex” in his statement to police — see footnote 1, supra) were armed. He [Sidney Jean] had a little, black .22 automatic; and Alex had a black .38 or .45 automatic that was bigger than his .22. Sidney Jean describes the home invasion, the loading of stolen items into the victim’s red four door vehicle, and their escape, with him [Sidney Jean] driving. He testified that after making a right turn and crashing into a median with metal in the middle, they bailed out. They jumped a fence, and encountered officers. Sidney Jean later heard 4 or 5 shots of gunfire. (DE#37-5).

From the record in these summary judgment proceedings it appears that the only witnesses to the actual shooting of the plaintiff Erlis Jean-Baptiste [a/k/a Alex], were the plaintiff himself, Officer Gutierrez who shot him, and an eyewitness named Ernesto Perez, an air-conditioning technician who testified at plaintiffs trial (,see Transcript T/382-390, at DE# 49-2 pp. 64-72). Perez testified that on 7/24/03 he was working on the roof of a 5 story building, and heard police sirens. When he heard a crash, he looked down, and saw that a red car had hit a wall in the middle of an intersection. The car doors were open, and two men were running. They wore black pants and shirts. Near a house, which was about 100 feet from Perez’s rooftop location, the two men stopped, appeared to talk, and then one took off while the other “stayed around the house.” At that property there were a shed and a tree. From his perspective, Perez could see a police officer arrive and run around the back of the house. Perez lost sight of the officer because of the tree, but he could see the man who had fled from the car. He was facing toward Perez, standing behind the shed. On direct examination, Perez testified that he the “heard the shot fired and the guy fall.” Perez testified that, from his vantage point, he could not see the shooter firing his weapon. He testified that: “[he] fell to the ground. The officer came and both-another officer came right after, and then they turned around and put handcuffs on him.” On cross-examination, Perez testified that because he was too far away, he couldn’t see the faces of the people who got out of the car or see anything in the hand of the person who was shot, or in the hand of the other man; that upon being shot the man fell to the ground; and that when the second officer arrived in the yard the shooting had already taken place.

It appears from the record that what was known by the defendant Officer Gutierrez, at the time when he encountered plaintiff Jean-Baptiste near the shed, is as follows. As he testified to in a sworn police statement, taken on 7/25/03, the day after the 7/24 incident in question (DE# 37-9), Gutierrez had heard a police radio communication (a BOLO) concerning an armed home invasion robbery that had just occurred, involving 2 Black males, who were armed, and in a red “Plymouth Dodge Neon.” Gutierrez proceeded toward the'area, and observed a red Dodge Neon going westbound on 108 Street. Gutierrez pursued it, keeping the dispatcher apprised of his activity. After being delayed at an intersection, Gutierrez caught up to the Neon, and saw it was crashed into a wall. Gutierrez drew his weapon, saw no one was inside the car, and advised the dispatcher that he had “a bailout.” Gutierrez searched on foot; a civilian on a balcony yelled and pointed toward the street; and Gutierrez saw two Black males wearing black shirts and pants, with gloves, one holding an unknown object. Due to the nature of the BOLO (an armed home invasion), Gutierrez “more or less figured that it [the unknown object] was a gun.” The two men ran, and made a turn on the East side of a house. Gutierrez followed, running with his microphone in his left hand, and his gun in his right hand. He saw one of the men jump a fence, and run Northbound. Gutierrez advised the dispatcher. He could not see the other man. As Gutierrez was approaching the fence, there was a structure [a shed] to his left, and when he got to the corner of it, he saw the second Black male. Gutierrez testified, “When I turned my face, the north side, I saw the second black male holding a gun pointed directly at me.” (DE# 37-9, p. 9).

When asked what he thought at that point, Gutierrez testified, “I was in fear for my life. I thought he was going to shoot me, so I immediately started shooting.” (Id.). He testified that “I fired until the threat was gone, until I had completely emptied my magazine.” (Id.). Gutierrez also testified that after he ceased firing, he saw the suspect fall to the ground. (Id.). When asked where he went after the suspect fell to the ground, Gutierrez testified, “I saw that he was in one place and the firearm was to the side of him. So I immediately went to the west side of the shed where I dropped my magazine and reloaded and secured to make sure there was nobody on that side.” (Id.).

At deposition, taken nearly three years later, on April 20, 2006 (DE# 37-10) Gutierrez testified: “when I cleared the shed ... that’s where I saw the defendant standing there with his gun pointed at me.” (DE# 37-10, p. 28). When further questioned about whether he had seen the gun before, Gutierrez stated “Like I said at that time it was a blunt object in the hand. And due to the nature of the call, instinct already told me it was a gun due to the fact that they dispatched the home invasion robbery as two subjects with guns, driving a red Dodge Neon, which all came together.” (Id. at p. 29). Gutierrez testified that the suspect had the gun pointed directly at him (Id., p. 30), and stated his opinion that “the defendant was basically trying to ambush me.” (Id., pp. 30). When asked if he told the man to drop the gun (Id.), Gutierrez testified “Absolutely not. At that point in time there’s a firearm pointed at me. If I would have told him to drop the gun, I would be dead right now. We wouldn’t be having this conversation.” (Id., at p. 31). When asked if the man shot at him, Gutierrez testified, “I don’t know if he ever got a chance (Id.). When questioned about how many times he fired, Gutierrez testified that “I cleared my entire magazine, which was 14 rounds;” and that he shot them off “one right after the other.” (Id.). Gutierrez testified that it was only after the very last round that “the subject finally went down.” (Id., at p. 32). When asked what happened then, Gutierrez testified, “After that I approach, I see the subject, I see the firearm, it’s laying next to him. My instinct was to make sure there’s no threat on the other side. I went ahead and dropped my magazine and reloaded my firearm.” (Id.). Then, after reloading, Gutierrez got on the air and advised, “shots fired, shots fired, rescue.” (Id.). Thereafter, Officer Mzeghet arrived on the scene. (Id., at p. 33).

The plaintiff, Erlis Jean-Baptiste, in his sworn affidavit (Ex. A, scanned at DE# 49, pp. 30 and 32), states that “I at no time pointed a firearm of any sort at defendant, Jose Gutierrez, or otherwise threatened Jose Gutierrez by word or act on said July 24, 2003 ...”. (Id., at p. 30). He further states that on that date he “was standing next to a shed type structure” when defendant Gutierrez “rounded the corner” and “encountered me standing by the shed.” (Id.). Jean-Baptiste swears that Gutierrez, “without saying a single word to me ... opened fire on me with a high caliber firearm,” and did so without any warning, by word or act, that he would shoot, and without “any instruction whatsoever, that I might have been able to respond to in order to avoid being shot by Jose Gutierrez.” (Id.). Jean-Baptiste states his opinion that the shooting was “without warning, provocation, or cause.” (Id.).

Regarding his injuries, the discharge of the officer’s weapon, and Gutierrez’s actions after encountering him, the plaintiff swears in his Affidavit, as follows. “I was struck in the groin or testicle area by Jose Gutierrez’s first or second shot, which brought me to the ground, immediately.” (Id.). Plaintiff also swears that “after I fell to the ground from Jose Gutierrez’s first or second shot, Jose Gutierrez did not stop shooting me,” and further swears that “[t]o the contrary, from approximately eight to ten feet away form [sic] where I lay on the ground, Jose Gutierrez stood over me and continued to shoot me until there were no bullets left in his gun, and even then he did not stop pulling the trigger on his gun, but continued to pull the trigger at least two additional times even though his gun was out of bullets.” (Id., at pp. 30, 32). Jean-Baptiste, while not explicitly stating that he was not in possession of a weapon, states in his affidavit that “I did not possess a cocked, firearm at any time. If a firearm was found cocked then it was cocked by someone other than me.” (Id., p. 32).

The Police Investigation and Crime Scene and Laboratory Reports, and related documents (DE# s 37-14 through 37-23), including a Police crime scene drawing and photographs, indicate the following. Two guns were found on the ground. One, a blue steel Beretta .25 caliber semi-automatic pistol, was found in the grass in the front yard located at 617 N.E. 137 Street. The hammer was down, the safety was off, the chamber was empty, and 7 cartridges were in the magazine. At the main scene, at the rear of the property located at 625 N.E. 137 Street, in the grass just to the east of a pile of the shooting victim’s [Jean-Baptiste’s] clothing that had been cut off of him by Fire-Rescue Paramedics, investigators found a KBI 9mm Semi-automatic pistol, with the hammer half cocked, the safety off, the chamber empty, and 12 cartridges in the magazine. The clothing included a ski mask, a pair of black gloves, a pair of black and white Nike sneakers with a suspect projectile in the heel, an ankle sock, boxer shorts, a black T-shirt, a white T-shirt, and Docker pants (size 38 x 34). A single gunshot hole was observed in the top of the ankle sock, with a corresponding exit hole in the heel, which police said apparently related to the projectile found in the heel of the right sneaker. There were numerous holes in the pants, 2 on the front above the left knee, 1 on the right abdomen below the waistline, 1 on the right buttock to the right of the center seam, and a tear by the waistline, above the right rear pocket. The pants had a black cloth clip-on holster inside the waistband. There were twelve spent 9 mm casings in the grass from Gutierrez’s weapon; and a 9 mm magazine from Gutierrez’s weapon was found on the ground, by the shed, around the corner from where his spent cartridges lay. One projectile, discovered with a metal detector, was found in the ground behind the shed South of the pants, one projectile was found lodged in Jean-Baptiste’s shoe, and a what appeared to be a bullet fragment with a small piece of bone was found on the ski mask. A police Report by Detective Sara Times indicates that at the Jackson Memorial Hospital Ryder Trauma Center, she was briefed by Dr. McKinney. According to Times’ report, the doctor told her that Jean-Baptiste had multiple gun shot wounds (“GSWs”), consisting of approximately 6 GSWs to the lower extremities of the right and left legs, a GSW to the foot, and what appeared to be a GSW to the testicles.

While the Undersigned is aware of the distorting effects of hindsight, and that a Court must consider the reasonableness of defendants’ alleged actions from their point of view, it is generally required to accept the plaintiff’s version of the underlying facts. Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1168 (11 Cir.2005).

In reviewing a motion for summary judgment, the court is only compelled to take reasonable inferences in favor of the non-movant. See Tinker v. Beasley, 429 F.3d 1324, 1326 (11 Cir.2005); Kesinger v. Herrington, 381 F.3d 1243, 1247 (11 Cir.2004) (“a mere scintilla of evidence in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment”). The Court, however, is generally obliged to resolve disputed facts in the plaintiff non-movant’s favor. “Issues of credibility and the weight afforded to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary judgment.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11 Cir.2003).

Although the Court may reject fantastic or utterly implausible testimony at summary judgment, Cf. Kesinger ex rel. Kesinger v. Herrington, 381 F.3d 1243, 1249 (11 Cir.2004) (rejecting as “not substantial evidence” an eyewitness’s testimony which was directly controverted by physical evidence), here, the plaintiff Jean-Baptiste’s evidence and sworn statement regarding his and the defendant Officer Gutierrez’s alleged conduct [i.e. that he (Jean-Baptiste) did not point a gun at Gutierrez, that Gutierrez shot without warning, causing him to fall to the ground after one or two shots, and that Gutierrez then moved closer and continued shooting until his clip was empty], is not so outrageous or implausible that no reasonable juror could believe this portion of his evidence. Although the burden of persuasion at criminal trial is different than that required in a civil matter, it is not insignificant that a jury of his peers acquitted the plaintiff (Jean-Baptiste, a/k/a Baptiste-Jean) of committing Aggravated Battery on a LEO, or lesser included offenses, against Officer Jose Gutierrez.

As discussed further below, in this Report, the defendant Gutierrez in his Motion for Summary Judgment (DE# 37, at p. 5, footnote 4) responds to plaintiffs allegation that he [Gutierrez] shot him, causing him to fall to the ground, and then approached and stood over him and fired 12 to 13 more times.

Clearly, there are in this case, genuine issues of material fact, the existence of which makes summary disposition of Jean-Baptiste’s complaint against Gutierrez inappropriate. Celotex Corp. v. Catrett, supra. These include whether Jean-Baptiste pointed a gun at Officer Gutierrez; how many shots were fired by defendant Gutierrez [Gutierrez states that he fired 14 times, yet only 12 casings from his 9mm gun are noted in the police reports]; from what distance and at what angle the bullets were fired; how many shots were fired by Gutierrez before plaintiff Jean-Baptiste fell to the ground [plaintiff says 1-2, and defendant says 14]; which of the shots fired by Gutierrez struck Jean-Baptiste, and which caused his wounds; and what became of the fired projectiles that were not recovered at the scene.

It is here noted that, in his Summary Judgment motion, Gutierrez argues that plaintiffs allegation that he stood over him and shot him is simply not credible, and should be rejected. Gutierrez’s argument and reasoning regarding this issue/claim is, as follows:

Plaintiffs assertion that Off Gutierrez shot Plaintiff once, and “[ajfter plaintiff fell to the ground, the defendant, Jose Gutierrez, did stand over the plaintiff ... and shot plaintiff an additional twelve (12) to thirteen (13) times,” Compl. at p. 5, is not only contradicted by the facts, but also stretches the boundaries of rational thought by alleging that a police officer who stood directly over a wounded suspect, shot that suspect twelve to thirteen times and completely missed the upper torso of the suspect and altogether the suspect at least six (6) times. According to Plaintiffs version of the facts, the laws of physics would also indicate that those six (6) bullets that were shot from Off. Gutierrez’s firearm and completely missed Plaintiff would be lodged in the ground next to or in fairly close proximity to where plaintiff lay, however, only two projectiles were found anywhere near where Plaintiff fell after being shot. See Melgarejo Report (Ex. 14), Crime Scene Report (Ex. 15); Crime Scene Drawing (Ex. 20).

(DE# 37, Motion, at p. 5, footnote 4). Notwithstanding this logic, resolving the issue of where projectiles went after they were fired, and the other matters noted above which are in dispute, would require the Court to speculate, and make credibility determinations.

Summary judgment is not a procedure for resolving a swearing contest. Chandler v. Baird, 926 F.2d 1057 (11 Cir.1991). In this case, resolution of the issues and facts that are in dispute, based upon the parties’ opposing and conflicting evidence, would require the Court to step outside its assigned role, and invade the province of the jury. As the Supreme Court stated in its opinion in Anderson v. Liberty Lobby, Inc., supra, “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to believed, and all justifiable inferences are to be drawn in his favor.” Anderson, supra, 477 U.S. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

This does not mean, when taking the plaintiffs version of the facts as true [i.e. that he fell to the ground after 1-2 shots] that as to that initial use of force, the defendant Gutierrez could not possibly be entitled to qualified immunity for an initial discharge of his weapon. The plaintiff has not stated in his Affidavit that he did not have a gun in his possession at the time he was shot. He has simply said that he did not point a weapon at Gutierrez, and did not have a cocked weapon. Gutierrez knew [via a BOLO] that Black males were involved in an armed home invasion, and that they fled in a red Neon. Gutierrez also knew [from personal observation] that a car matching the description of the suspect vehicle was pursued by him and crashed, that persons who presumably bailed out of the car were pointed out to him by a civilian, that they were two Black males, that one appeared to possibly be armed, that he (Gutierrez) saw one jump a fence and disappear, and that he then suddenly came upon another Black male in a back yard near the fence. If, having the aforementioned knowledge, Gutierrez perceived that the suspect he was facing was armed and posed a risk of harm, even if he did not actually see a weapon, he could be entitled to qualified immunity, at least for an initial discharge of 1-2 projectiles which plaintiff says took him to the ground. See discussion at footnote 3 and related text of this Report, regarding Carr, supra, 338 F.3d at 1269 (quoting McLenagan v. Karnes, 27 F.3d 1002 (4 Cir.1994)). It appears, however, that a determination regarding whether under those circumstances Gutierrez would be entitled to qualified immunity for shooting Jean-Baptiste once or twice, still cannot be made based on the evidence of record. To do so at this juncture would again require speculation on the part of the Court. This is because, assuming as it must [i.e., taking non-movanVplaintiffs version of the facts to be true] that plaintiff did not point a gun at Gutierrez, the Court cannot determine from evidence of record whether Jean-Baptiste even had a gun in his hand that Gutierrez could see. If he did not, the Court also cannot determine what it was about Jean-Baptiste’s movements or demeanor, when Gutierrez encountered him by the shed, that could have caused Gutierrez to believe that he posed to him a risk of serious bodily harm or death, so as to justify use of deadly force.

Again, taking as true plaintiffs version of the facts [that Gutierrez continued shooting him after he fell to the ground], it clearly cannot be said here, at summary judgment, that the defendant officer is entitled to disposition of the complaint, in his favor, based on entitlement to qualified immunity.

IV. CONCLUSION

It is therefore recommended that: 1) the defendant Gutierrez’s Motion for Summary Judgment (DE# 37) be denied; and 2) the case remain pending on the claim that Gutierrez used excessive force, when shooting the plaintiff Jean-Baptiste during the course of his arrest on July 24, 2003.

Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.

REPORT THAT CASE IS READY FOR TRIAL

In this pro se civil rights action pursuant to 42 U.S.C. § 1983, a separate Report has been entered this date, recommending, for reasons stated therein, that the defendant Gutierrez’s Motion for Summary Judgment (DE# 37) be denied, and that the case proceed on the plaintiff Jean-Baptiste’s claim that he was subjected to the use of excessive force, when, during the course of his arrest on July 24, 2003, Gutierrez shot him multiple times. In conjunction with this Report, an Order is also being entered with instructions requiring the plaintiff to file an amended pretrial statement, as he was previously directed to do, and instructing the defendant thereafter to file his pretrial statement. The case is otherwise now at issue; and the parties have not consented to trial before a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

It is therefore respectfully recommended that this case be placed on the trial calendar of the District Judge.

SUPPLEMENTAL REPORT OF MAGISTRATE JUDGE

This Cause is before the Court upon an Order of Reference (DE# 85) by the Honorable Alan S. Gold, United States District Judge, requesting a Supplemental Report and Recommendation, after the filing of Objections by the Defendant Rodriguez (DE# 79) in opposition to a Report (DE# 65) which recommended the denial of defendant Rodriguez’s motion for summary judgment (DE# 37).

Plaintiff alleges that Gutierrez, a MiamiDade Police Officer, used excessive force by shooting him when making his arrest. Gutierrez moved for summary judgment, arguing that under the circumstances of the case he was entitled to use deadly force to effect the plaintiffs arrest, that there is no genuine issue as to any material fact, and that he is entitled to qualified immunity.

As summarized in the Order of Reference for a Supplemental Report, defendant Rodriguez argues in his Objections that factual disputes cited in the Report DE# 37, including whether plaintiff pointed the gun at Officer Rodriguez, and whether Rodriguez warned plaintiff to drop the gun, are not material to the determination whether a constitutional violation occurred. Rodriguez also argues that once he was authorized to use deadly force, it was immaterial whether he shot plaintiff twice (until plaintiff allegedly fell to the ground), or whether he shot the plaintiff fourteen times. Defendant Rodriguez further argues that the Report (DE# 37) failed to address whether there was clearly established law putting him on notice of constitutional violation given the facts of this case.

Although plaintiff alleged he was shot on July 23, 2003 (Complaint DE# 1), the record shows the events occurred on July 24.

The defendant and plaintiff offer differing versions of the facts. In brief, defendant police officer Gutierrez states that he engaged in a vehicular pursuit, and then a foot chase with suspects, who based on a BOLO were believed to have been involved in an armed home invasion. Gutierrez claims that he suddenly came upon plaintiff Jean-Baptiste in a back yard near a shed, waiting “in ambush” for him, with a gun raised and pointed directly at him. Gutierrez claims he feared for his life, and immediately started shooting his police weapon, without prior warning to the plaintiff that he would use deadly force, because delay could have resulted in his death. Gutierrez asserts that he discharged all rounds from his weapon in rapid succession, and that only after the last shot was fired did the plaintiff fall to the ground. The plaintiff has sworn to a different set of facts, stating he never pointed a gun at officer Gutierrez, or threatened him in any way. He states that Officer Gutierrez without a warning [which plaintiff contends would have given him a chance to comply with orders and avoid being shot multiple times] shot him once or twice, seriously wounding him and thereby bringing him to the ground, and then proceeded to stand over him from a distance of 8 to 10 feet and continued shooting until his weapon was empty, wounding him several more times. [Plaintiff supports his claim that he made no threat toward Officer Gutierrez with a weapon at him or otherwise, by referencing his acquittal at trial on all charges of assault on the defendant Officer, and dismissal of weapons possession charges, stemming from the events underlying this case].

It is here noted, for purposes of correcting the record, that the prior Report (DE# 65, at p. 15) incorrectly interpreted plaintiff Jean-Baptiste’s Affidavit (DE# 49, pp. 30-31) as indicating that Officer Gutierrez had moved closer after discharging the first two shots [which plaintiff says immediately brought him to the ground], and then continued shooting at the plaintiff from a distance of 8-10 feet away while he lay there injured. Jean-Baptiste’s Affidavit states that Gutierrez rounded the corner of the shed, encountered him standing there, and opened fire which brought him to the ground immediately after one or two shots, and that Gutierrez then, from a distance of about 8 to 10 feet from where he lay, stood over him and continued to shoot. Examination of corresponding allegations in Plaintiffs Response (DE#49 at p. 18), which echo the statements in his Affidavit, clearly indicates that Jean-Baptiste in his Response alleges that the initial 1 or 2 shots were discharged from about 8 to 10 feet away, and that after he fell to the ground, the remaining shots were also discharged as Gutierrez stood over him, also from about 8 to 10 feet away.

Qualified immunity, under appropriate circumstances, serves to insulate governmental officials from personal liability for actions taken pursuant to their discretionary authority, if their conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11 Cir.2002). See also Lee v. Ferraro, 284 F.3d 1188, 1195 (11 Cir.2002); Flores v. Satz, 137 F.3d 1275 (11 Cir.1998); Foy v. Holston, 94 F.3d 1528 (11 Cir.1996).

When engaging in an analysis at the summary judgment stage, as to whether a defendant may be entitled to qualified immunity, the court must take the facts in the light most favorable to the party asserting the injury. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11 Cir.2005); Pace v. Capobianco, 283 F.3d 1275, 1285 (11 Cir.2002).

Once the qualified immunity defense is raised by a government official and that defendant has first shown that he was acting within his discretionary authority, Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir.2003), the burden shifts to the plaintiff to show that qualified immunity is not appropriate. Cottone, supra, at 1358; Foy, supra, at 1532. In this case, it is undisputed that the defendant Gutierrez was acting under his discretionary authority as a Miami-Dade police officer. The inquiry therefore continues, with the burden on the plaintiff.

The two part test which ensues requires that, first, the court must determine whether the plaintiffs allegations, if true, establish that the defendant violated a constitutional right. If he did not, then the Court’s inquiry ends, and the defendant is entitled to qualified immunity. Saucier, supra, 533 U.S. at 201, 121 S.Ct. 2151; Vinyard, supra, 311 F.3d at 1346. Second, if under the plaintiffs version of the facts, a constitutional deprivation did occur, the next step is to determine whether the right was clearly established at the time of the alleged deprivation. Vinyard, supra. As stated by the Supreme Court, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The Court must determine “whether the state of the law ... gave [the defendant] fair warning that [his action] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The 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. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Vinyard, supra, 311 F.3d at 1347.

The Court of Appeals for the Eleventh Circuit has provided that there are three ways to show that the law was “clearly established,” i.e., that the defendant had “fair warning” that his action(s) would violate a constitutional right.

One way is to show “that the official’s conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of [ease law].” Lee v. Ferraro, 284 F.3d 1188, 1199 (11 Cir.2002) (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11 Cir.2000)). In such a case, the law is clearly established only if the standards set forth by the Supreme Court and appropriate case law “inevitably lead every reasonable officer in [the defendant’s] position to conclude the force was unlawful.” Id. (quoting Priester, 208 F.3d at 927). These eases are sometimes referred to as “obvious clarity” cases, where the subject behavior “is far beyond the hazy border between excessive and acceptable force.” Vinyard, supra, 311 F.3d at 1350, n. 18. Examples of such cases are Priester supra (case in which officer released police dog to attack plaintiff who was lying on the ground, did not pose a threat to officers or to anyone else, and was not attempting to flee or resist arrest); and Slicker v. Jackson, 215 F.3d 1225, 1233 (11 Cir.2000) (case in which officers beat Slicker “even though he was handcuffed and did not resist, attempt to flee, or struggle with the officers in any way”).

A second way, if the conduct is not so bad that it violates a constitutional provision on its face, is to “show that a broader, clearly established principle” gleaned from the Constitution, statutes or case law “should control the novel facts in this situation.” Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11 Cir.2005) (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

A third way, if no broad ease law is applicable, is to point to a “materially similar case.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11 Cir.2002). “Any case law that is ‘materially similar’ to the facts in the case at hand must pre-date the officer’s alleged improper conduct and ‘truly compel the conclusion that the plaintiff had a right under federal law.’ ” Mercado, supra, 407 F.3d at 1159 (quoting Ensley v. Soper, 142 F.3d 1402, 1406 (11 Cir.1998)). The Court of Appeals for the Eleventh Circuit has held that in this Circuit the law can be “clearly established” for qualified immunity purposes, “only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega City Bd. of Education, 115 F.3d 821, 826-27 n. 4 (11 Cir.1997) (en banc).

In Te