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                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-13301
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 1:13-cv-21069-FAM

DAVID CALDERIN,

                                                      Plaintiff - Appellee,

versus

MIAMI-DADE POLICE DEPARTMENT,
J.D. Patterson in his official capacity as Director, et al.,

                                                      Defendants,

ERIC H. SCHOTTENHEIMER,
individually and in his official capacity as an
officer of the Miami-Dade Police Department,

                                                      Defendant - Appellant.

                             ________________________

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

                                   (February 5, 2015)
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Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      This appeal arises from a 42 U.S.C. § 1983 action brought by David

Calderin against Officer Erik Schottenheimer of the Miami-Dade Police

Department (MDPD). Officer Schottenheimer appeals the district court’s denial of

his motion for summary judgment based on qualified immunity. Because Officer

Schottenheimer’s use of force violated Calderin’s clearly established Fourth

Amendment right to be free from unreasonable seizures, we affirm.

                                           I.

      On December 29, 2011, Calderin texted a former girlfriend, Anam Aziz

(Anam) to tell her that he was going to speak with her father, Hussein Aziz

(Hussein), at the car dealership where he worked. Calderin also told Anam, via

text message, that he would kill himself if she called the police. Anam called the

police and notified them of the messages she received from Calderin, including his

threat to commit suicide.

      As promised, Calderin went to the car dealership where Hussein worked,

carrying a thirteen-inch knife in his pocket. According to Calderin, he brought the

knife with him because he believed that he would be taken in for psychiatric

treatment, rather than arrested, if police discovered the knife.




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      After Anam’s 911 call, police dispatch sent MDPD Officer Nery de Leon

Lowry to the dealership. Officer Lowry reported that, when she arrived, Calderin

appeared sad, disappointed, and hopeless. Hussein was apparently in the process

of telling Calderin that his relationship with Anam was over and that Anam would

be getting married in a matter of months. Calderin and Hussein finished their

conversation with a hug when Officer Lowry arrived. Meanwhile, Officer

Schottenheimer was patrolling the area and heard a request for backup to the

dealership over the radio. He also learned via radio that Anam had told the 911

dispatcher that Calderin threatened to commit suicide. Officer Schottenheimer

appeared on the scene approximately when Hussein and Calderin were wrapping

up their conversation and while Officer Lowry was approaching the pair. Officer

Schottenheimer reported that none of the individuals present seemed to be

exhibiting any emotions.

      Officer Lowry asked Calderin whether he was, in fact, David Calderin.

When Calderin responded affirmatively, Officer Lowry asked whether he had any

weapons. Calderin told Officer Lowry that he had a knife in his pocket. Officer

Lowry announced that Calderin had a knife “very loudly.” Officer Lowry ordered

Calderin to raise his hands above his head and placed her hand on her Taser.

Calderin instead reached for and grabbed the knife, which was sheathed and in his

pants pocket. He loudly announced that he had a knife and raised the knife toward


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his own neck. Three seconds after taking the knife from his pocket, he was shot in

the arm by Officer Schottenheimer. At that time, Calderin estimates that he was

ten to twelve feet from Officer Lowry and thirty feet from Officer Schottenheimer.

Officer Schottenheimer estimates these distances at seven to eight feet and fifteen

to eighteen feet, respectively. Calderin dropped the knife immediately when he

was shot. 1 Calderin never removed the knife from its sheath. Officer

Schottenheimer claims that he never heard Officer Lowry or Calderin say that

Calderin had a knife. Officer Schottenheimer also claims that he thought the knife

was a revolver, specifically that the knife’s handle looked like the grip of a

revolver.

       Immediately after getting shot in the arm, Calderin turned his back on the

officers and began to run from them. He did not attempt to reach for the knife

again. Officer Schottenheimer shot him four additional times. Officer

Schottenheimer claims to have seen the knife fall to the ground only after firing his

final shot.

       During Calderin’s raising of the knife and Officer Schottenheimer’s shots,

no individuals besides Calderin and the two officers were present, though Officer

Schottenheimer claims that Hussein was still in the vicinity and was standing close

to Calderin. Calderin claims not to have heard any warning from Officer

       1
         Calderin’s expert witness testified in a deposition that it would be impossible for
Calderin to continue to hold onto the knife after being shot in the same arm that held the knife.
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Schottenheimer prior to his discharging his weapon. Officer Schottenheimer

insists that he warned Calderin twice to get on the ground. Officer Schottenheimer

did not warn Calderin that he would shoot. Officer Lowry testified that Calderin

seemed more compliant when she was the only officer on the scene. While he was

on the ground after the shooting, Calderin heard Officer Lowry admonishing

Officer Schottenheimer that he did not have to shoot Calderin because she had just

finished telling him that Calderin had a knife. Moreover, Officer Lowry never

drew her gun. MDPD classified Calderin’s criminal conduct as misdemeanor

carrying of a concealed weapon.

                                          II.

      We review the denial of summary judgment based on qualified immunity de

novo. McCullough v. Antolini, 

, 1204 (11th Cir. 2009). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). We view the evidence and draw inferences in a light most

favorable to the nonmoving party. Gilmore v. Hodges, 

, 272 (11th

Cir. 2013). In § 1983 cases where the defendant raises a qualified immunity

defense, the plaintiff has the burden of demonstrating that defendant violated a

constitutional right and that that right was clearly established when the violation

occurred. Mercado v. City of Orlando, 

, 1156 (11th Cir. 2005).


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                                          A.

      Calderin argues that Officer Schottenheimer violated his right to be free

from unreasonable seizures when Officer Schottenheimer shot him. See U.S.

Const. amend. IV. Calderin maintains that all of the shots that hit him violated that

right. Officer Schottenheimer counters that his discharging of his weapon was

reasonable under the circumstances. See Jean-Baptiste v. Gutierrez, 

,

821 (11th Cir. 2010) (recognizing that police are entitled to use a reasonable

amount of force—judged under the circumstances—in carrying out their duties).

When considering the reasonableness of a seizure, we “balanc[e] the ‘nature and

quality of the intrusion’ against the ‘governmental interest at stake.’” 

(quoting Graham v. Connor, 

, 396, 

,

1871 (1989) (internal quotation marks omitted)). “When determining the

government’s interest, we must consider factors that include ‘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.’” 

490 U.S. at 

).

      Preliminarily, we must address Officer Schottenheimer’s assertions

regarding his perception of the circumstances surrounding the shooting: (1) that he

believed that Calderin was holding a gun and not a knife; (2) that he did not see

Calderin drop the knife after the first shot; and (3) that he believed Hussein to have


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remained in the area after his arrival. Officer Schottenheimer’s reasonable beliefs

about the circumstances surrounding the shooting are relevant to the

reasonableness of his actions. See St. George v. Pinellas Cnty., 

,

1337 (11th Cir. 2002) (“We then ask not whether probable cause existed but

whether the officer reasonably believed it existed, based upon the information he

or she possessed at the time of the incident.”). However, applying the summary

judgment requirement that we view the facts in the light most favorable to the

nonmoving party, and remaining mindful that a factfinder is entitled to disbelieve

the defendant, see Acoff v. Abston, 

, 1548 (11th Cir. 1985), we must

assume that Officer Schottenheimer knew the facts as Calderin sets them out. In

other words, we assume that Officer Schottenheimer knew that Calderin was

holding a knife, that Calderin dropped the knife after the first shot, and that

Hussein was no longer in the vicinity.

      Thus, the situation can be summarized as follows. Officer Schottenheimer

arrived at the dealership, where he saw Calderin, whom he knew was suicidal.

Calderin drew the knife, bringing it close to his own chest or neck area. Officer

Lowry and Calderin both announced that Calderin had a knife, with Calderin

making his announcement while he held the knife, and Officer Schottenheimer

heard them. The only other individual in the vicinity was Officer Lowry, who was

ten to twelve feet away. Officer Schottenheimer was thirty feet away. Calderin


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did not make any threatening movements. Officer Schottenheimer resorted to

lethal force to disarm Calderin without giving Calderin any warning. Immediately

after the first shot, Calderin dropped the knife, which Officer Schottenheimer saw.

Calderin turned to escape the gunfire, and Officer Schottenheimer continued to

shoot, even though he knew that Calderin had dropped the knife.

      Under the Mercado/Graham balancing test, the nature and quality of the

intrusion here is extremely severe. See Tennessee v. Garner, 

, 9, 105 S.

Ct. 1694, 1700 (1985) (“The intrusiveness of a seizure by means of deadly force is

unmatched.”).

      Considering the governmental interest side of the balancing test, first, the

crime at issue was not severe; MDPD eventually categorized it as a misdemeanor.

See Galvez v. Bruce, 

, 1243 (11th Cir. 2008) (“[W]e note that the

crimes with which Galvez was charged were not severe; petit theft and resisting

arrest without violence are both misdemeanors . . . .”).

      Calderin also did not pose a threat to the safety of the officers or others.

Mercado provides us with precedent with strikingly similar facts where we held

that there was little to no safety issue and eventually ruled in the plaintiff’s favor.

There, the plaintiff threatened to attempt suicide by hanging after a fight with his

. The wife called 911 and reported that her husband was

suicidal. 

police officers entered the home, the plaintiff was sitting


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on the floor, crying, and pointing the knife at his heart. 

ordered

the plaintiff to drop the knife, but he refused. 

never made

threatening moves toward the officers. 

did not warn the plaintiff

that they would use force if he did not drop the weapon. 

thirty

seconds later, one officer ordered the other to fire a non-lethal round at the

plaintiff, which he did. 

The police department’s policies allowed

targeting of the head or neck with the non-lethal round only in situations where

deadly force—i.e., force likely to cause death or serious bodily harm—would be

justified. 

      “The defendants claim[ed] that the use of force [was] justified because

suicidal subjects sometimes make erratic moves that can jeopardize the safety of

the officers on the scene.” 

We concluded that the plaintiff was not

“posing an immediate threat to the officers at the time he was shot in the head”

largely because there was “no indication that [the plaintiff] made any threatening

moves toward the police.” 

Likewise, speculation about erratic

moves Calderin may have made or other weapons he may have had on his person

are insufficient to justify the force applied here when Calderin was merely holding

the knife. Moreover, we find it relevant to the inquiry of how a reasonable officer

would react to the situation that Officer Lowry never felt the need to draw her




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firearm, even though she was closer to Calderin, and admonished Officer

Schottenheimer for shooting Calderin.

      Finally, whether Calderin was resisting or evading arrest also fits nicely into

the analysis contained in Mercado. In Mercado, as is the case here, the plaintiff

failed to comply with instructions from the officers. 

In some ways,

failing to comply with officer instructions may be considered resisting arrest or at

least akin to it. Nonetheless, we held that the plaintiff “was not actively resisting

arrest” and noted the fact that he did not struggle with the officers. 

we cannot say that Calderin was resisting arrest, even though he was not

complying with officer instructions.

      With two of the governmental interest factors weighing heavily against

Officer Schottenheimer and another barely, if at all, weighing in his favor, the

balance between the intrusion and the governmental interest tips the scale against

Officer Schottenheimer. His initial firing of his weapon was an unreasonable use

of force under the circumstances. The same can be said of the subsequent shots

fired during Calderin’s flight because, taking the facts in the light most favorable

to Calderin, Officer Schottenheimer knew that Calderin was unarmed after the first

shot and did not pose a threat of immediate harm to others. See 

, 105 S. Ct. at 1697 (holding that the use of deadly force against a fleeing

suspect is unreasonable unless “the officer has probable cause to believe that the


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suspect poses a significant threat of death or serious physical injury to the officer

or others”). Therefore, Officer Schottenheimer violated Calderin’s constitutional

right to be free from unreasonable seizures.

                                          B.

      We must now determine whether the right Officer Schottenheimer violated

was clearly established. A right is clearly established where there exists “a

materially similar case that has already decided that what the police officer was

doing was unlawful.” Durruthy v. Pastor, 

, 1092 (11th Cir. 2003)

(internal quotation marks omitted). We have already discussed Mercado, which

we decided approximately six years before the shooting here. The facts of that

case were sufficiently similar to put Officer Schottenheimer on notice that his

conduct would violate Calderin’s constitutional right. In fact, Mercado is nearly

indistinguishable on the material facts. Calderin’s right, then, was clearly

established when Officer Schottenheimer violated it.

      AFFIRMED.




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