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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-14530
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 2:18-cv-14367-DMM



DUDLEY TEEL,

                                                           Plaintiff-Appellant,

                                    versus

DEPUTY SHERIFF JONATHAN LOZADA,
in his individual capacity,
SHERIFF DERYL LOAR,
in his individual and official capacities,

                                                          Defendants-Appellees.
                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (September 23, 2020)

Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Officer Jonathan Lozada of the Indian River County Sheriff’s Office

responded to a mental health crisis call at Dr. Dudley Teel’s residence. Dr. Teel’s

wife, Susan, was threatening to kill herself. After a brief encounter, Officer

Lozada fatally shot Mrs. Teel. Dr. Teel, as the personal representative of his

wife’s estate, brought a claim under 42 U.S.C. § 1983 against Officer Lozada for

excessive use of force. He brought a Monell claim1 against Sheriff Deryl Loar and

state-law wrongful death claims against both defendants.

      Dr. Teel now appeals the district court’s order granting summary judgment

in favor of Officer Lozada and Sheriff Loar on the ground that Officer Lozada’s

use of force was reasonable under the circumstances. Viewing the facts in the light

most favorable to Dr. Teel, we disagree with that determination. We hold that the

circumstances of Officer Lozada’s encounter with Mrs. Teel violated Mrs. Teel’s

clearly established constitutional right to be free from the excessive use of force.

We therefore reverse the district court’s judgment in part, vacate it in part, and

remand for further proceedings.




      1
          See Monell v. Dep’t of Soc. Serv., 

(1978).

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                             I.      FACTUAL BACKGROUND

       The facts elicited during discovery are as follows. 2 The Indian River County

Sheriff’s Office dispatch notified officers that a 911 call came through describing a

person—later determined to be Mrs. Teel—who had “possibly cut herself,” was

“under the influence of alcohol,” and had a knife. Doc. 39-4 at 2–3.3 She had in

fact cut herself: Dr. Teel, an emergency medical doctor, testified that he

discovered his wife in their master bedroom, where she had slit both of her wrists,

“was bleeding out,” and needed to go to the hospital. Doc. 46-10 at 78.

       Officer Samuel Earman, on patrol in the area, responded as the primary

officer en route, and Officer Lozada, also on patrol at the time, responded that he

would provide backup. Officer Lozada, however, arrived first to the Teels’ home,

and he did not wait for Officer Earman to arrive. (Officer Earman would arrive

minutes after Officer Lozada and hear gunshots from the threshold of the house.)

Officer Lozada knocked on the front door. When no one answered, he opened the

front door, which was unlocked, and saw Dr. Teel walking down the stairs towards

the door. He and Dr. Teel spoke for about a minute. Dr. Teel told Officer Lozada


       2
          On review of a motion for summary judgment, we view the facts in the light most
favorable to the plaintiff. Lee v. Ferraro, 

, 1190 (11th Cir. 2002). In recounting
the facts, we note where facts are disputed and at this stage resolve the disputes in Dr. Teel’s
favor. We emphasize, however, “that the facts, as accepted at the summary judgment stage of
the proceedings, may not be the actual facts of the case.” Priester v. City of Riviera Beach,

, 925 n.3 (11th Cir. 2000) (internal quotation marks omitted).
       3
           “Doc.” numbers refer to the district court’s docket entries.
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that his wife was upstairs, was trying to kill herself, was under the influence of

narcotics and/or alcohol, and was armed with a knife that Dr. Teel had

unsuccessfully attempted to take away. Officer Lozada observed what he believed

to be blood on Dr. Teel’s shirt. He understood that Mrs. Teel had not tried to harm

Dr. Teel. Officer Lozada concedes that before encountering Mrs. Teel, he had no

objective facts indicating that she was a danger to anyone other than herself.

      Officer Lozada then entered the home, told Dr. Teel to stay downstairs, and

climbed the stairs toward the master bedroom. As Officer Lozada advanced up the

stairs, he drew his gun and held it to his chest.

      When Officer Lozada reached a sitting room at the top of the stairs, he saw

Mrs. Teel in the next room, the master bedroom, wearing a bathrobe and lying

quietly on a canopy bed with her feet dangling from it. Between Officer Lozada

and Mrs. Teel was the doorway to the bedroom, a chest at the foot of the bed, and

most of the bed, which had large round columns supporting the canopy. Officer

Lozada paused for 2 to 3 seconds at the top of the stairs and then walked to the

doorway of the bedroom. He observed that Mrs. Teel’s hands were tucked behind

her back. At this point, Officer Lozada testified, he still knew of no fact




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suggesting that Mrs. Teel would present a threat to anyone but herself. Officer

Lozada did not observe any blood on Mrs. Teel’s body. 4

       Officer Lozada announced himself and said in an assertive tone, “Susan,

Sheriff’s Office. Let me see your hands.” Doc. 29-1 at 10. Mrs. Teel complied

with the order. She brought both hands from behind her back, revealing a kitchen

knife with an eight-inch blade in her left hand. Mrs. Teel was 60 years old, 5’2”

tall, and 120 pounds. She stood from the bed and, standing with the canopy bed

between her and officer Lozada, held the knife with the blade pointed down over

her head. Officer Lozada took “two or three” steps inside the bedroom. Doc. 39-1

at 112. Mrs. Teel remained on the other side of the bed from Officer Lozada for 8

to 10 seconds. During that time, he gave her no instruction or warning. He said

nothing to her at all.



       4
          Officer Lozada testified that nothing about the scene he encountered upstairs indicated
that Mrs. Teel was in physical distress. Credibility determinations are for a jury to make, but we
cannot help but notice that some of Officer Lozada’s statements seem inconsistent with the rest
of the evidence, including his own version of the events. Mrs. Teel had cut her wrists and neck
and was bleeding so severely that her husband, an emergency medical doctor, believed she might
die from blood loss. An Indian County Sheriff’s Office investigator who was at the scene
immediately following the shooting observed that “blood was all over the rug and couch” in the
sitting room, Doc. 39-5 at 3, a fact that is consistent with Dr. Teel’s recollection that after cutting
herself, Mrs. Teel ran from the bedroom to the sitting room couch, where she sat while he called
for help. Officer Lozada testified that he observed the couch as he walked through the sitting
room en route to the bedroom. He shot Mrs. Teel in the bedroom and possibly again in the
doorway between the bedroom and sitting room, and she fell in the doorway, making it
exceptionally unlikely that the sitting room couch was covered with blood from the shooting
alone. Moreover, Officer Lozada testified that he did not look at Mrs. Teel’s arms during the
encounter and so did not observe blood on them, despite also testifying that Mrs. Teel walked
towards him holding a knife over her head.

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      After the 8 to 10 second pause, Mrs. Teel began walking “gradual[ly]” in

Officer Lozada’s direction.

The sequence of events that occurred next

is not precisely clear, but it is undisputed that the events happened quickly. As

Mrs. Teel was walking around the bed, she said “Fuck you. Kill me.” Doc. 39-

2:17. Officer Lozada then pointed his gun at Mrs. Teel. He also took a step back

and radioed emergency traffic reporting that Mrs. Teel had a knife. Mrs. Teel said,

“Come on, just do it.”

Officer Lozada then said to Mrs. Teel, “don’t

come.” Doc. 39-4 at 3. By this point, only four minutes had passed since Officer

Lozada’s arrival at the Teel residence.

      Mrs. Teel never made a sudden movement or ran or lunged at Officer

Lozada. Nor did she point the knife in his direction. Officer Lozada never

instructed Mrs. Teel to drop the knife, never clearly instructed her to stop moving,

and never warned that he would shoot her if she failed to comply. When asked

why he did not issue warnings or tell Mrs. Teel to drop the knife or stop moving,

Officer Lozada testified that he “was on the radio with dispatch to let them know

with the emergency traffic and that she was armed,” and “by the time [he] was

doing that, [he] looked up” and Mrs. Teel “was right there.” Doc. 39-1 at 106.

Officer Lozada admitted that he had the option of fully retreating, leaving the

bedroom and even walking down the stairs if Mrs. Teel continued to advance; he

chose not to.


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      Instead, Officer Lozada fired his gun at Mrs. Teel. It is not clear from the

record how far Officer Lozada was from Mrs. Teel at the time he shot her. Officer

Lozada testified to various distances, ranging from 6 to 10 feet. Because on review

of summary judgment orders we must view the facts in the light most favorable to

the plaintiff, we accept the longer of these distances. Officer Lozada could tell his

bullet hit Mrs. Teel because her body shuddered. He testified that she kept

walking in his direction at the “same speed,” a gradual pace.

Officer

Lozada stepped back again. Two seconds after he fired the first shot, he fired

again. Two seconds after that, when Mrs. Teel did not stop moving in his

direction, Officer Lozada fired at her a third time. Mrs. Teel fell. In addition to his

gun, Officer Lozada was armed with pepper spray and a taser, yet he used neither.

He testified that since he had already shown Mrs. Teel his gun, he was “not going

to deescalate to non-lethal.”

      Officer Lozada radioed for emergency medical services, telling dispatch that

shots had been fired. Four minutes had passed since Officer Lozada arrived at the

residence. Officer Earman had by that point entered the home; he was at the base

of the stairs yelling Officer Lozada’s name. Mrs. Teel’s body was lying in the

doorway of the bedroom. Officers and Dr. Teel attempted to render aid, but,

approximately nine minutes after he shot her, Mrs. Teel succumbed to her wounds.




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The Sheriff’s Office’s investigation revealed that Officer Lozada had shot Mrs.

Teel once in the chest and twice in the abdomen.

      Dr. Teel sued Officer Lozada under 42 U.S.C. § 1983 for excessive force

and under Florida’s Wrongful Death Act. He also sued Sheriff Loar of the Indian

River County Sheriff’s Office under § 1983 and Monell v. Department of Social

Services, 

(1978), for failing to adequately train, supervise, or direct

deputy sheriffs in citizen encounters and for violation of the Fourteenth

Amendment’s right to due process. He sued Sheriff Loar under Florida’s

Wrongful Death Act as well.

      At the close of discovery, Officer Lozada and Sheriff Loar moved for

summary judgment. The district court granted their motions. As to the excessive

force claim, the district court determined that Officer Lozada’s use of deadly force

was constitutionally permissible because Mrs. Teel walked toward him armed with

a knife and was “relatively close” to Officer Lozada. Doc. 59 at 8. Finding no

constitutional violation, the district court did not determine whether Mrs. Teel’s

clearly established rights were violated. Because the court had found that Officer

Lozada’s use of force was not excessive, it also granted summary judgment to

Officer Lozada and Sheriff Loar on the remaining claims.

      This is Dr. Teel’s appeal.




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                        II.    STANDARD OF REVIEW

      We review de novo a grant of summary judgment based on qualified

immunity. Cantu v. City of Dothan, No. 18-15071, __ F.3d __, 

,

at *8 (11th Cir. Sept. 3, 2020). “When considering a motion for summary

judgment, including one asserting qualified immunity, courts must construe the

facts and draw all inferences in the light most favorable to the nonmoving party

and when conflicts arise between the facts evidenced by the parties, they must

credit the nonmoving party’s version.” Feliciano v. City of Miami Beach, 

, 1252 (11th Cir. 2013) (alteration adopted) (internal quotation marks

omitted). “[C]redibility determinations and the weighing of evidence are jury

functions, not those of a judge.”

omitted).

      “Summary judgment is appropriate if the evidence before the court shows

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” McCullough v. Antolini, 

,

1204 (11th Cir. 2009) (internal quotation marks omitted). Conversely, “[e]ven

where the parties agree on the facts, if reasonable minds might differ on the

inferences arising from undisputed facts, then the court should deny summary

judgment.” Glasscox v. Argo, 

, 1212 (11th Cir. 2018) (internal

quotation marks omitted).




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                                III.   DISCUSSION

      “A government official asserting a qualified immunity defense bears the

initial burden of showing he was acting within his discretionary authority.”

(internal quotation marks omitted). After he makes

this showing—and here, it is undisputed that Officer Lozada was acting within his

discretionary authority—the burden shifts to the plaintiff to show that “(1) the

defendant violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 

, 1264 (11th Cir. 2004). Viewing the evidence in the light most

favorable to Dr. Teel and drawing all reasonable inferences in his favor, we

conclude that Dr. Teel met his burden to show that Officer Lozada violated Mrs.

Teel’s constitutional right to be free from the excessive use of force. We also

conclude that the law was clearly established at the time of the encounter that the

force Officer Lozada employed was excessive. The district court erred in

concluding otherwise.

      The district court’s adjudication of each of Dr. Teel’s remaining claims

hinged on its determination that Officer Lozada did not use excessive force.

Because we reject that conclusion, we vacate the court’s judgment on Dr. Teel’s




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other claims against Officer Lozada and on his claims against Sheriff Loar and

remand for further proceedings.5

   A. The Constitutional Violation

       The Fourth Amendment’s guarantee against unreasonable searches and

seizures includes the right to be free from the excessive use of force. U.S. Const.

amend. IV, see Graham v. Connor, 

, 394–95 (1989). “In determining

whether [an officer’s] force was reasonable, we must determine whether a

reasonable officer would believe that this level of force is necessary in the situation

at hand.” Mercado v. City of Orlando, 

, 1157 (11th Cir. 2005)

(internal quotation marks omitted). We ascertain the objective reasonableness of a

seizure by balancing the “nature and quality of the intrusion” against the

“governmental interest at stake.” 

(internal quotation

marks omitted).

       Turning to the nature and quality of the intrusion in this case, we recognize

that “[t]he intrusiveness of a seizure by means of deadly force is

unmatched.” Tennessee v. Garner, 

, 9 (1985). Officer Lozada’s


       5
          “The matter of what questions may be taken up and resolved for the first time on appeal
is one left primarily to [our] discretion, . . . to be exercised on the facts of individual cases.”
Singleton v. Wulft, 

, 121 (1976); see Clark v. Coats & Clark, Inc., 

,
609 (11th Cir. 1991) (electing not to consider, in the first instance, whether a party had met its
summary judgment burden). Although there are circumstances in which we are “justified in
resolving an issue not passed on below,” we do not think this is such a case. 

.

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gunshots were fatal. Thus, we weigh heavily the nature and quality of the intrusion

and next consider the governmental interest at stake.

      Graham generally requires that we weigh the governmental interest at stake

by examining the totality of the circumstances, 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 [she] is actively resisting arrest or attempting to evade arrest

by flight,” keeping in mind that 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.” 

. The use of

deadly force is reasonable only if “the suspect poses a significant threat of death or

serious physical injury to the officer or others.” 

.

      As in Mercado, “[b]ecause this situation does not involve a criminal arrest,

our facts do not fit neatly within the Graham 

.

Indeed, “because Florida does not recognize attempted suicide as a crime, it is

impossible for this [C]ourt to measure the ‘severity of the crime at issue.’”

). We have little trouble, then,

concluding that this Graham factor weighs in favor of Dr. Teel. See

      We next consider the extent to which Mrs. Teel placed herself or others in

danger. See

was a threat to herself, “and Florida law


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recognizes a ‘compelling interest in preventing suicide.’”

McIver, 

, 103 (Fla. 1997)). Critically, however, we conclude that

there is a genuine dispute as to whether Mrs. Teel posed a significant, immediate

threat to Officer Lozada’s safety. Mrs. Teel was armed with a knife and walking in

his direction. These two facts drove the district court to conclude that Officer

Lozada’s use of force was constitutional.6 But the district court failed to

sufficiently account for additional material facts. Officer Lozada understood that

Mrs. Teel had not threatened her husband or anyone else. She did not verbally

threaten Officer Lozada and was not pointing the knife at him. See Tolan v.

Cotton, 

, 658 (2014) (rejecting court’s determination that plaintiff’s

admonition to “Get your fucking hands off my mom” was a verbal threat,

explaining that “a jury could reasonably infer that his words, in context, did not

amount to a statement of intent to inflict harm,” especially given testimony that

plaintiff “was not screaming”). When he shot her without any warning, Mrs. Teel

was 10 feet away. See 

–55, 1160–61 (concluding that

an officer who fired a Sage Launcher from six feet at a suicidal man pointing a

knife at his chest violated the man’s clearly established Fourth Amendment right to

be free from excessive force); see also Perez v. Suszczynski, 

, 1220



       6
       The district court also relied in part on the fact that Mrs. Teel told Officer Lozada
“Come on, do it.” Doc. 59 at 8.

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(11th Cir. 2016) (explaining that “guns are different when it comes to the level and

immediacy of the threat—for instance, a person standing six feet away from an

officer with a knife may present a different threat than a person six feet away with

a gun”). Her walk was gradual, and she never picked up pace or made any sudden

movement.7 She was diminutive in size.

       Perhaps most tellingly, Officer Lozada also was “aware [and conceded] that

alternative actions”—retreating into the sitting room or down the stairs to meet up

with Officer Earman or using a non-lethal method to subdue Mrs. Teel—“were

available means of resolving the situation.” 

. A

reasonable officer in his shoes would have been aware of the same alternatives.

Yet Officer Lozada did none of these things. His explanation was that since he had

drawn his gun—on his way up the stairs, before he had any reason to believe Mrs.

Teel was a danger to anyone but herself—he would not de-escalate to less-than-

lethal force. When we view the evidence in the light most favorable to Dr. Teel,

we conclude that this factor weighs against Officer Lozada. 8


       7
         We reject Officer Lozada’s argument that Mrs. Teel was approaching him “in a
threatening manner” Appellee’s Br. at 27, because we are here on an appeal from a summary
judgment order and a jury reasonably could conclude otherwise considering the totality of the
circumstances. It is true that Officer Lozada testified he was afraid for his life. But Officer
Lozada’s beliefs about his “life being in danger are just that—his beliefs. They are not ‘facts and
circumstances’ that we may rely on to objectively determine the reasonableness of his actions.”

–20.
       8
         Shaw v. City of Selma, 

(11th Cir. 2018), which the district court cited in
support of its decision, is readily distinguishable. There, officers responded to a 911 call about a


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       Finally, we consider that Mrs. Teel “was not actively resisting arrest, and

there is no evidence that [she] struggled with” Officer Lozada.

In

Mercado, we found that this factor weighed in the plaintiff’s favor even though the

officer ordered the plaintiff to drop the knife he was aiming at himself. We

explained that “[a]rguably, Mercado did not have time to obey [the officer’s] order

. . . because [the officer] discharged the [weapon] within seconds of making this

request.”

complied with Officer Lozada’s order that she show

her hands. She showed him a knife, but Officer Lozada never ordered her to drop

it. He never ordered her to stop where she was or put her hands down, despite

having 10 seconds to do so while she stood from the bed and paused. And he

failed to issue any warning after she began walking in his direction; instead he

interrupted his dialogue with her to use his radio. The Fourth Amendment does not

require an officer to issue a warning if he lacks time to do so, but a jury could infer

that Officer Lozada had time, yet failed, to warn Mrs. Teel. See Vaughan v. Cox,




man carrying a hatchet.

The man was well-known to at least one of the officers
for aggressive behavior, and the officers instructed him to drop his weapon at least 26 times.

The man was less than five feet from an officer and approaching when the officer
shot him once, and he died from his injury.

evidence in the list most
favorable to Dr. Teel, Officer Lozada had no prior information that Mrs. Teel may be aggressive
and yet he shot her three times, without giving her any warning, from more than four times the
distance in Shaw.
       The unpublished decisions the district court cited are also readily distinguishable and, in
any event, do not bind us here.

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, 1330–31 (11th Cir. 2003). This Graham factor also weighs against

Officer Lozada.

       This case “is not one in which deadly force was used to prevent the escape

of a suspect who had committed a violent or otherwise serious crime or who might

harm others if not apprehended.” Cantu, 

, at *9. Rather,

although Mrs. Teel had committed no crime, and was not an immediate threat to

him, Officer Lozada—without issuing a command or warning—shot her three

times, killing her. Viewing the evidence and, critically to this case, drawing all

inferences in favor of Dr. Teel, we conclude that “[a]ll of the factors articulated in

Graham weigh in favor of” Dr. Teel, 

, 9 and so Officer

Lozada used excessive force against Mrs. Teel. The district court erred in

concluding otherwise.

   B. Clearly Established Law

       Officer Lozada argues that even if he used excessive force, he did not violate

clearly established law. Specifically, he argues that no factually similar case




       9
         Officer Lozada suggests that he had probable cause to take Mrs. Teel into custody for
involuntary commitment because of her suicide attempt and that Mrs. Teel resisted his efforts.
The same could be said of the plaintiff and officers in Mercado, and yet it did not affect our
analysis in that case. We follow Mercado here.

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clearly established that his conduct was unconstitutional. 10 Even if he is correct,

summary judgment was unwarranted.

       In general, “[t]o determine whether a right was clearly established, we look

to binding decisions of the Supreme Court of the United States, this Court, and the

highest court of the relevant state (here, Florida).” 

.

We ask whether it would be “sufficiently clear that every reasonable official would

understand that what he is doing is unlawful.” District of Columbia v. Wesby,

, 589 (2018) (internal quotation marks omitted). We undertake this

inquiry “in light of the specific context of the case, not as a broad general

proposition.” Lee v. Ferraro, 

, 1194 (11th Cir. 2002) (internal

quotation marks omitted). “To be clearly established, a legal principle must be

‘settled law,’ meaning that it is not merely suggested, but rather ‘is dictated by

controlling authority or a robust consensus of cases of persuasive authority.’”

(quoting 

–90). “Close

similarity of the facts between the cases is ‘especially important in the Fourth

Amendment context, where the Court has recognized that it is sometimes difficult


       10
          Office Lozada also argues that “it was not clearly established that Lozada had to give a
warning before using deadly force.” Appellee’s Br. at 23. He is right that an officer is not
required to give a warning under all circumstances; however, it is clearly established that an
officer must give a warning before using deadly force when a warning is feasible. See Cantu,

, at *9 (citing Tennessee v. Garner, 

, 11–12 (1985)). Here, as
explained above, a jury could reasonably find that it was feasible for Officer Lozada to give a
warning.

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for an officer to determine how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer confronts.’” Cantu, 

, at *12 (quoting Mullenix v. Luna, 

, 308 (2015)).

      Importantly, however, “the rule requiring particularized case law to establish

clearly the law in excessive force cases” has a “narrow exception,” Priester v. City

of Riviera Beach, 

, 926 (11th Cir. 2000), known as the “obvious

clarity” rule, Oliver v. Fiorino, 

, 907 (11th Cir. 2009). Under this

exception, “[e]ven without a close fit,” a plaintiff “can clear the clearly established

law hurdle and defeat a qualified immunity defense by showing 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.” Cantu,

, at *12 (internal quotation marks omitted). “To come within

the narrow exception, a plaintiff must show that the official’s conduct was so far

beyond the hazy border between excessive and acceptable force that the official

had to know he was violating the Constitution even without caselaw on point.”

(alteration adopted) (internal quotation marks omitted).

“This test entails determining whether application of the excessive force standard

would inevitably lead every reasonable officer in the Defendant[’s] position to

conclude the force was unlawful.”

quotation

marks omitted).


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      Under the unique circumstances here, it would be obviously clear to any

reasonable officer that the display of force was excessive. As in Mercado, when

the evidence is viewed and inferences are drawn in favor of Dr. Teel, “this is one

of the cases that lie 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 case law.” 

(internal

quotation marks omitted). “We have repeatedly held that police officers cannot

use force that is wholly unnecessary to any legitimate law enforcement purpose.”

omitted).

      Officer Lozada’s use of force was wholly unnecessary to any legitimate

purpose here. As we have explained, Mrs. Teel was not suspected of committing

any crime. See Cantu, 

, at *14. She was suicidal; the purpose

of the family’s 911 call was to keep her alive, and that should have been the

purpose of Officer Lozada’s interaction with her given his testimony that he

believed her to be a threat only to herself. See 

. Yet

Officer Lozada drew his gun even before he encountered Mrs. Teel, pointed the

gun at her before she came near him, and fired at her without warning. Mrs. Teel

was not pointing the knife at Officer Lozada or charging at him. By his own

testimony she was coming toward him slowly, and he had the opportunity to retreat

beyond her reach but simply chose to shoot her instead. Moreover, viewing the


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evidence in the light most favorable to Dr. Teel, Officer Lozada had time to warn

Mrs. Teel, or even to direct her clearly to disarm herself but failed to do so. See

Cantu, 

, at *14. Given these facts, we conclude that Officer

Lozada did not need “case law to know that by intentionally shooting [Mrs. Teel

three times], he was violating [her] Fourth Amendment rights.” 

.

      Officer Lozada notes that he was trained on a “21-foot rule scenario,” in

which a charging attacker with a knife could cover 21 feet in the time it would take

to draw a firearm. Doc. 38-1 at 120–21. He suggests that it cannot be clearly

established that the use of a firearm within the range of 21 feet would be excessive

force. Even assuming the rationale for this 21-foot rule is accurate, it is

inapplicable here. Officer Lozada testified that in the training scenario, the person

armed with a knife is “running towards” the officer.

Mrs. Teel, who

was bleeding profusely from cuts in her arms and neck, was walking gradually—

not running—toward Officer Lozada, so any conclusions we could draw about a

charging assailant do not apply here.

      In this case, “[q]ualified immunity does not apply at the summary judgment

stage given the light in which we must view the evidence now.” Cantu, 

, at *14. Although Officer Lozada “may yet prevail on [qualified

immunity] grounds at or after trial on a motion for a judgment as a matter of law,”


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              Case: 19-14530     Date Filed: 09/23/2020    Page: 21 of 21



Cottrell v. Caldwell, 

, 1487 (11th Cir. 1996) (internal quotation marks

omitted), Dr. Teel is entitled to a trial on his excessive force claim.

                               IV.    CONCLUSION

      Taking the facts in the light most favorable to Dr. Teel, a reasonable jury

could find that Officer Lozada violated Mrs. Teel’s clearly established

constitutional right to be free from the excessive use of force. Officer Lozada

therefore is not entitled to summary judgment based on qualified immunity. We

reverse the district court’s judgment in this respect. Our decision on Dr. Teel’s

Fourth Amendment excessive force claim undermines the district court’s reasoning

for rejecting his remaining claims, but we decline to address alternative arguments

as to those claims in the first instance. We vacate the district court’s judgment as

to those claims. This case is remanded for further proceedings.

      REVERSED IN PART, VACATED IN PART, AND REMANDED.




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