[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-11436

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D.C. Docket No. 5:10-cv-01658-AKK

ALEX WAYNE MORTON, 

an individual, 

 Plaintiff - Appellee,

versus

JEREMY KIRKWOOD,

 Defendant - Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(February 8, 2013)

Before MARCUS and MARTIN, Circuit Judges, and SCRIVEN,* District Judge.

MARCUS, Circuit Judge:

 * Honorable Mary S. Scriven, United States District Judge for the Middle District of Florida, 

sitting by designation.

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In this civil rights case, Officer Jeremy Kirkwood of the City of Guntersville 

Police Department appeals the district court’s denial of his motion for summary 

judgment on the basis of qualified immunity. Kirkwood shot Alex Wayne Morton 

late at night on January 7, 2010, while Morton was inside his car. The shots 

paralyzed Morton. According to Kirkwood, he shot Morton after Morton 

accelerated his car, threatening the life of a nearby police officer. According to 

Morton, he never accelerated his car, and Kirkwood nonetheless shot him seven 

times after he put his car in park. Morton sued Kirkwood for damages under 42 

U.S.C. § 1983, alleging that Kirkwood used excessive force in violation of the 

Fourth Amendment. Morton also sued Kirkwood for assault and battery under 

Alabama’s law.

After thorough review, we conclude that Kirkwood is not entitled to 

qualified immunity. Viewing the evidence in the light most favorable to Morton, as 

we must at this stage in the proceedings, we conclude that no reasonable police 

officer would have used deadly force against Morton. Also, clearly established law 

gave Kirkwood fair notice that his actions, as alleged by Morton, violated the 

Fourth Amendment. Similarly, accepting Morton’s account of the tragic events that 

led to his grievous injury, state agent immunity does not apply to the assault and 

battery claim. We, therefore, affirm the district court’s denial of summary 

judgment.

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I.

At their depositions, Kirkwood and Morton offered sharply clashing 

accounts about the shooting. At the summary judgment stage, we must view the 

evidence in the light most favorable to the non-movant. See Skop v. City of 

Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). We therefore set forth the nonmovant’s account of the shooting.

Late on January 7, 2010, Morton sat in his car in a park. The night was 

frigid, so Morton let the car’s engine run. He left the car’s headlights on too. 

Morton was speaking to his aunt on his cellphone when he saw a truck enter the 

park. As the truck neared, Morton recognized it as a police vehicle.

1 He concluded 

his telephone conversation and drove away, slowly, letting the car coast. The car 

moved at its coasting speed, which Morton estimated at about one mile per hour.

Morton was continuing on his way out of the park at coasting speed when he 

noticed a police officer chasing him. At no time did Morton see anyone in front of 

his car. Nor did he see Nugent anywhere on the scene. He then heard the police 

officer shout. Morton said that he immediately shifted his car to park and raised his 

 1 Officer Tim Nugent drove the truck. Beside him sat Kirkwood, his partner. According to 

Nugent and Kirkwood, Morton stood outside in the park, and he dashed for his car when he saw 

the police. Even though they lacked probable cause to arrest Morton for any crime, Nugent and 

Kirkwood parked the police truck and chased Morton on foot when they saw him flee. Kirkwood

has conceded, however, that at this stage he cannot contest the testimony that Morton sat inside 

his car the entire time.

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hands. Kirkwood nonetheless shot at the car; seven bullets struck Morton.2

Immediately after the shooting began, Morton scrambled to escape from the car. 

The car shifted to reverse and traveled in reverse until it bumped into a tree, where 

it stopped. Morton does not remember how the car got in reverse, but he assumes 

that he accidently shifted the gear while he tried to escape. It is undisputed, 

however, that the car shifted to reverse and traveled backward at some point and 

that it continued backward after the shooting.

The Alabama Bureau of Investigation examined the crime scene and found 

tire tracks, thirty-four feet in length, visible over fallen leaves, shattered glass 

thirteen feet from the car’s resting place, and cartridge casings spread over a 

“sixteen foot area parallel to the tracks.”

Morton sued Kirkwood in the U.S. District Court for the Northern District of 

Alabama alleging that Kirkwood violated his Fourth Amendment rights and also 

committed assault and battery in violation of state law.

3 Kirkwood moved for 

summary judgment on qualified immunity grounds. The district court denied 

Kirkwood’s motion, and he now appeals.

II.

 2 Kirkwood disputes this version of events. He testified that Morton was initially on foot, that 

Morton got into his car and accelerated, even though Nugent was standing in front of Morton’s 

car, and that he shot Morton only to protect Nugent.

3 Morton also sued Nugent and the City of Guntersville, but Guntersville and Nugent were 

dismissed from the lawsuit by stipulation of the parties. The only remaining defendant is 

Kirkwood.

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We review a district court’s denial of summary judgment on qualified

immunity grounds de novo. Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th 

Cir. 2011). “The court shall grant summary judgment 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 review all evidence and 

factual inferences “in the light most favorable to the non-moving party, and resolve 

all reasonable doubts about the facts in favor of the non-movant.” Skop, 485 F.3d 

at 1136 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 

2004)). We review the evidence this way because the “issues appealed here 

concern ‘not which facts the parties might be able to prove, but, rather, whether or 

not certain given facts showed a violation of “clearly established” law.’” Sheth v. 

Webster, 145 F.3d 1231, 1236 (11th Cir. 1998) (per curiam) (quoting Johnson v. 

Jones, 515 U.S. 304, 311 (1995)). We acknowledge that the “facts, as accepted at 

the summary judgment stage of the proceedings, may not be the actual facts of the 

case.” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009) (quoting Lee 

v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002)).

Qualified immunity protects government officials who were sued 

individually “unless the law preexisting the defendant official’s supposedly 

wrongful act was already established to such a high degree that every objectively 

reasonable official standing in the defendant’s place would be on notice that what 

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the defendant official was doing would be clearly unlawful given the 

circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002). “The 

purpose of qualified immunity is to allow officials to carry out discretionary duties 

without the chilling fear of personal liability . . . .” McCullough, 559 F.3d at 1205.

In order to obtain qualified immunity, an official must first establish that he 

acted within his discretionary authority. Skop, 485 F.3d at 1136. Morton does not 

dispute that Officer Kirkwood acted within his discretionary capacity when he shot 

Morton. The qualified immunity analysis thus shifts the burden to Morton, who 

must show that Kirkwood does not merit qualified immunity. See id. at 1136-37. 

Qualified immunity does not apply where the facts show that the official violated 

the plaintiff’s constitutional rights and where the law clearly established those 

rights at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223,

232 (2009). Accepting Morton’s testimony as true, we conclude that Kirkwood 

violated a clearly established constitutional right.

A.

We have little difficulty concluding on this record that, if we accept 

Morton’s account, as we must, Officer Kirkwood violated Morton’s Fourth 

Amendment right to be free from the use of excessive force. “[A]pprehension by 

the use of deadly force is a seizure . . . .” Tennessee v. Garner, 471 U.S. 1, 7 

(1985). “Determining whether the force used to effect a particular seizure is 

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‘reasonable’ under the Fourth Amendment requires a careful balancing of the 

nature and quality of the intrusion on the individual’s Fourth Amendment interests 

against the countervailing governmental interests at stake.” Graham v. Connor, 490 

U.S. 386, 396 (1989) (internal quotation marks omitted). “In determining the 

reasonableness of the force applied, we look at the fact pattern from the 

perspective of a reasonable officer on the scene with knowledge of the attendant 

circumstances and facts, and balance the risk of bodily harm to the suspect against 

the gravity of the threat the officer sought to eliminate.” McCullough, 559 F.3d at 

1206. In excessive force cases, we are mindful that officers make split-second 

decisions in tough and tense situations. See Jean-Baptiste v. Gutierrez, 627 F.3d 

816, 820 (11th Cir. 2010).

In deciding whether a police officer used excessive force, we pay “careful 

attention to the facts and circumstances” of the 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.” Graham, 490 U.S. at 396 (citing Garner, 471 U.S. at 8-9). In the 

deadly force context, we have observed that a police officer may constitutionally 

use deadly force when the 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 

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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.

McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329-30

(11th Cir. 2003)). Although these factors are useful, we cannot apply them 

mechanically, see Penley v. Eslinger, 605 F.3d 843, 849-50 (11th Cir. 2010), and

“we must still slosh our way through the factbound morass of ‘reasonableness,’” 

Scott v. Harris, 550 U.S. 372, 383 (2007). Here, we easily conclude that Kirkwood 

violated Morton’s constitutional rights.

To begin with, Kirkwood had no probable cause to believe Morton 

committed any crime, let alone a serious crime involving the infliction or 

threatened infliction of serious physical harm. See Garner, 471 U.S. at 11. Nor did 

he have reason to believe that Morton was a threat to anyone. Next, Morton 

testified that he shifted his car to park and raised his hands when he heard Officer 

Kirkwood shout at him, so, if that account is credited, Kirkwood could not have 

reasonably believed that he had to shoot Morton to prevent his escape. In response, 

Kirkwood used deadly force, which placed Morton’s “fundamental interest in his 

own life” in jeopardy. Id. at 9.

To be sure, Officer Kirkwood testified that Morton accelerated the car while 

Officer Nugent was standing in front of the car and that he shot Morton to protect 

Nugent from being struck by the moving vehicle. But Kirkwood’s testimony is 

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flatly contradicted by Morton’s. According to Morton, he saw no one in front of 

his car, he never accelerated his car -- allowing it, instead, to coast at about one 

mile per hour -- and, notably, he shifted his car to park before Kirkwood shot him. 

In Morton’s version of events, Kirkwood shot an unarmed man in a stationary 

vehicle while having no reason to believe that the man would place anyone’s safety 

in danger. A reasonable officer would not have shot Morton under these

circumstances, and therefore Kirkwood’s use of deadly force violated Morton’s 

Fourth Amendment right to be free from excessive force.

B.

Kirkwood would nonetheless be entitled to qualified immunity unless 

Morton can show that the law clearly established his rights at the time of the 

putative misconduct. See Pearson, 555 U.S. at 232. We undertake this analysis “in 

light of the specific context of the case, not as a broad general proposition.” Hoyt 

v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (quoting Coffin v. Brandau, 642 F.3d 

999, 1013 (11th Cir. 2011)). And the right must be clear enough that any

reasonable officer “would understand that what he is doing violates that right.” 

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 

U.S. 635, 640 (1987)).

A plaintiff can demonstrate that a right was clearly established in a few 

ways. He can, for instance, produce a materially similar case decided by the 

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Supreme Court, this Court, or the highest court of the relevant state. Hoyt, 672 

F.3d at 977. A right can be clearly established, however, even in the absence of 

precedent. A plaintiff can point to a “broader, clearly established principle [that] 

should control the novel facts in [his] situation.” Mercado v. City of Orlando, 407 

F.3d 1152, 1159 (11th Cir. 2005). Finally, a plaintiff may show that an “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.’” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 

2000) (alteration in original) (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th 

Cir. 1997) (per curiam)). “This test entails determining whether ‘application of the 

[excessive force] standard would inevitably lead every reasonable officer in [the 

Defendants’] position to conclude the force was unlawful.’” Id. at 926-27

(alterations in original) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 

(11th Cir. 1993)).

Morton’s Fourth Amendment right to be free from the use of deadly force 

was clearly established well before January 7, 2010, the night he was shot. In 

Tennessee v. Garner, a case decided in 1985, a police officer shot a burglar to 

impede his escape. 471 U.S. at 3-4. The burglar died, and the Supreme Court held 

that the police officer violated the burglar’s right to be free from unreasonable 

seizures: 

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The use of deadly force to prevent the escape of all 

felony suspects, whatever the circumstances, is 

constitutionally unreasonable. It is not better that all 

felony suspects die than that they escape. Where the 

suspect poses no immediate threat to the officer and no 

threat to others, the harm resulting from failing to 

apprehend him does not justify the use of deadly force to 

do so. . . . A police officer may not seize an unarmed, 

nondangerous suspect by shooting him dead.

Id. at 11. That being said, the Supreme Court recognized that the use of deadly 

force is not always unconstitutional. Thus, for example, an officer might 

reasonably use deadly force to prevent escape where he has probable cause to 

believe that the suspect might cause serious physical harm to police officers or 

bystanders. Id.

We have applied Garner to car chases and have “consistently upheld an 

officer’s use of force and granted qualified immunity” where the plaintiff “used or 

threatened to use his car as a weapon to endanger officers or civilians immediately 

preceding the officer’s use of deadly force.” McCullough, 559 F.3d at 1207. But 

where the plaintiff did not use or did not threaten to use his car as a weapon, we 

have rejected an officer’s use of deadly force. Thus, for example, in Vaughan v. 

Cox, a 2003 case, the police gave chase to a truck they suspected was stolen. 343 

F.3d at 1326. The truck sped along the highway at the speed limit. Id. Despite the 

police presence, the truck driver would not stop. Id. According to the plaintiff -- a 

passenger in the truck -- the driver did not swerve from lane to lane and did not 

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place anyone’s safety at risk. Id. at 1327 & n.2. The truck accelerated to fifteen 

miles beyond the speed limit. A police officer eventually shot the truck three times. 

Id. One bullet struck the plaintiff, paralyzing him. Id. at 1327. The plaintiff sued 

the police officer who shot him. We concluded that “a reasonable jury could find, 

under [the plaintiff’s] version of the facts, that [the] . . . use of deadly force to 

apprehend [the plaintiff] was unconstitutional,” because “[g]enuine issues of 

material fact remain[ed] as to whether [the truck’s] flight presented an immediate 

threat of serious harm . . . at the time [the officer] fired the shot.” Id. at 1330.

And we held that the plaintiff’s constitutional right was clearly established at 

the time of the incident. “Under Garner, a police officer can use deadly force to 

prevent the escape of a fleeing non-violent felony suspect only when the suspect 

poses an immediate threat of serious harm to police officers or others.” Id. at 1332.

Like Garner, then, Vaughan gave fair warning that the use of deadly force against a 

non-resisting suspect who posed no danger violates a suspect’s Fourth Amendment 

right to be free from excessive force. While the facts of neither Vaughan nor 

Garner exactly match the facts here, Morton presented less of a safety and flight 

risk than the driver in Vaughan or the suspect in Garner. The truck in Vaughan was 

speeding on a highway; Morton’s car was parked. In Vaughan, the driver refused 

to stop when the police ordered him to do so; Morton immediately raised his hands 

when he heard Officer Kirkwood shout. In Vaughan, the driver was suspected of 

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car theft; Morton was suspected of no crime. And in Garner a criminal suspect 

sought to flee, whereas Morton did not flee and was not suspected of a crime. “[I]n 

the light of pre-existing law,” here Garner and Vaughan, “the unlawfulness” of

Kirkwood’s alleged actions was “apparent,” and so qualified immunity does not 

apply. Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012) (quoting Anderson, 

483 U.S. at 640).

III.

In fact, Kirkwood does not contest that, if we accept Morton’s version of 

events, qualified immunity does not apply. Instead, Kirkwood attacks Morton’s 

version of events, arguing that objective evidence renders Morton’s testimony 

utterly incredible because it proves that Morton’s car moved. Under Scott v. 

Harris, Kirkwood argues, we can reject Morton’s testimony wholesale, even at the 

summary judgment stage. 550 U.S. at 380. In so arguing, Kirkwood offers four 

pieces of forensic evidence that, he contends, utterly discredit Morton’s version of 

events: first, shattered glass lay thirteen feet from the car’s resting place; second, 

cartridge casings were spread over sixteen feet; third, tire tracks showed that the 

car traveled thirty-four feet; and, finally, one expert testified that Morton did not 

raise his arms before he got shot. We find Kirkwood’s argument unpersuasive.

In Scott, a video recorded a high speed chase between a police officer and a 

§ 1983 plaintiff. Id. at 374-75. The video contradicted the plaintiff’s version of 

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events. The Supreme Court wrote that, because the plaintiff’s version was “so 

utterly discredited by the record,” it would view the “facts in the light depicted by 

the videotape.” Id. at 380-81. The Court explained that “[w]hen opposing parties 

tell two different stories, one of which is blatantly contradicted by the record, so 

that no reasonable jury could believe it, a court should not adopt that version of the 

facts for purposes of ruling on a motion for summary judgment.” Id. at 380. In

Scott, the Supreme Court did not tinker with the summary judgment standard, for it 

merely held “that when documentary evidence ‘blatantly contradict[s]’ a plaintiff’s 

account ‘so that no reasonable jury could believe it,’ a court should not credit the 

plaintiff’s version on summary judgment.” Witt v. W. Va. State Police, 633 F.3d 

272, 276-77 (4th Cir. 2011) (alteration in original) (quoting Scott, 550 U.S. at 380). 

At times, we too have discarded a party’s account when the account “is inherently 

incredible and could not support reasonable inferences sufficient to create an issue 

of fact.” Riley v. City of Montgomery, 104 F.3d 1247, 1251 (11th Cir. 1997). “If 

no reasonable jury could return a verdict in favor of the nonmoving party, there is 

no genuine issue of material fact and summary judgment will be granted.” Beal v. 

Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994). Thus, where an 

accurate video recording completely and clearly contradicts a party’s testimony, 

that testimony becomes incredible. Unfortunately for Kirkwood, he does not offer 

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a video recording of the incident. He offers, rather, forensic evidence that does not 

so utterly discredit Morton’s testimony that no reasonable jury could believe it.

Kirkwood’s argument falters because Morton’s testimony may reasonably 

be harmonized with the circumstantial evidence that the car was moving. After all, 

Morton testified that he moved his car forward when he saw a truck enter the park, 

and no one disputes that Morton’s car went backwards after the shooting. Morton 

and Kirkwood are not clashing over whether the car moved, but rather arguing

over when and how the car moved. And the evidence to which Kirkwood points is 

silent on the “when” and “how” questions. Regardless, Morton’s experts dispute 

the relevance of this evidence. One expert opined, for instance, that one cannot 

draw any inference from the cartridge casings: “[E]ven whatever way that they do 

eject, once it hits the surface, it may bounce in any direction. So to try to 

reconstruct where a person was standing by the location of the hulls is just once 

again speculation.” Another expert opined that the shattered glass undermined 

Kirkwood’s, not Morton’s, version of events. We are, therefore, obliged to accept 

Morton’s account at this stage of the proceeding. The record plainly yields sharply 

dueling accounts of what happened and why the critical shots were fired. It does 

not utterly discredit Morton’s account.

IV.

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Finally, as for the state law claims, Morton alleged that Kirkwood 

committed assault and battery when he fired upon the car. In Alabama, a state 

agent is immune from civil liability for acts “arising out of his or her conduct in 

performance of any discretionary function within the line and scope of his or her 

law enforcement duties.” Ala. Code § 6-5-338(a). This includes acts arising from 

the “enforcement of the criminal laws of the State, including, but not limited to, 

law-enforcement officers’ arresting or attempting to arrest persons.” Ex parte 

Butts, 775 So. 2d 173, 178 (Ala. 2000). Nonetheless, a police officer loses this 

immunity when he “acts willfully, maliciously, fraudulently, in bad faith, beyond 

his . . . authority, or under a mistaken interpretation of the law.” Id.

The parties agree that Morton’s claim “arise[s] from a function that would 

entitle” Kirkwood “to immunity.” Ex parte Estate of Reynolds, 946 So. 2d 450, 

452 (Ala. 2006). As a result, to survive summary judgment, Morton had to show

that Kirkwood “acted willfully, maliciously, fraudulently, in bad faith, or beyond 

his . . . authority.” Id. “A State agent acts beyond authority and is therefore not 

immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or 

regulations, such as those stated on a checklist.’” Giambrone v. Douglas, 874 So. 

2d 1046, 1052 (Ala. 2003) (alteration in original) (quoting Butts, 775 So. 2d at 

178); see also Ex parte City of Tuskegee, 932 So. 2d 895, 906 n.6 (Ala. 2005) 

(“[I]f an officer is engaged in an arrest but he or she fails to discharge the arrest 

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pursuant to detailed rules or regulations, such as those stated on a checklist, then 

the officer is not entitled to immunity.” (alteration and internal quotation marks 

omitted)).

Morton asserts that Kirkwood violated the Guntersville Police Department 

Policy Manual (“Policy Manual”), which all parties agree applied to Kirkwood. 

Sections of the Policy Manual bar officers from shooting at suspects, even if they 

are escaping. For instance, the Policy Manual bars officers from shooting their 

guns “in an attempt to disable moving vehicles, unless subjects from the vehicle 

are firing at the officer.” Citing to another section of the Policy Manual, which 

allows police officers to shoot at suspects if the suspects are “about to kill or 

seriously injure the officer [or] about to kill or seriously injure another person,” 

Kirkwood contends that he deserves state agent immunity. But, just as with his 

qualified immunity argument, Kirkwood asks us to wholly disregard Morton’s 

testimony in favor of his own. As we have already explained, we cannot disregard 

that testimony at the summary judgment stage. Whether Kirkwood violated the

Policy Manual depends on whether one believes Kirkwood or Morton. Plainly, this

too is an issue for a jury to decide.

In short, if Morton’s version of events is accurate, a reasonable officer on the 

scene with knowledge of the attendant facts would not have shot Morton, hitting 

him with seven bullets, while he sat stationary in his car with his hands up. This 

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alleged conduct violated Morton’s Fourth Amendment rights. And clearly 

established law gave Kirkwood fair warning that the use of deadly force under 

these circumstances would be unconstitutional. Likewise, under Morton’s account, 

Kirkwood violated the Policy Manual, which would strip Kirkwood of state agent 

immunity. We, therefore, affirm the district court’s denial of Kirkwood’s motion 

for summary judgment.

AFFIRMED.

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