FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 August 26, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-13883 

________________________

D.C. Docket No. 01-01318-CV-3-J-25TJC

DARLENE M. KESINGER, as Personal 

Representative of the Estate of Charles

Scott Kesinger, and as Mother and Natural

Guardian of Charles Branden Kesinger and

Chad Scott Kesinger, Surviving Minor Children

of the Deceased, Charles Scott Kesinger,

Plaintiff,

ROBIN H. CONNER, as Personal Representative

of the Estate of Charles Scott Kesinger, and as

the Attorney Ad Litem of Charles Branden

Kesinger and Chad Scott Kesinger, Surviving

Minor Children of the Deceased, Charles Scott

Kesinger,

Plaintiff-Appellee,

versus

THOMAS HERRINGTON,

Defendant-Appellant,

NATHANIEL GLOVER, Sheriff of the

Consolidated City of Jacksonville,

Defendant.
 Honorable Richard Mills, United States District Judge for the Central District of *

Illinois, sitting by designation.

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________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(August 26, 2004)

Before TJOFLAT and HILL, Circuit Judges, and MILLS , District Judge. *

HILL, Circuit Judge:

In this case the district court denied the individual defendant’s motion for

summary judgment on the basis that he was not entitled to qualified immunity. 

For the following reasons, we find that the defendant is entitled to qualified

immunity. We reverse the judgment of the district court and remand with

instructions that the district court grant the defendant’s motion for summary

judgment.

I. PROCEDURAL BACKGROUND

The Estate of Charles Scott Kesinger (Kesinger) filed a two-count civil

action against the Jacksonville Sheriff’s Office (JSO) and Deputy Officer Thomas

Herrington resulting from the shooting death of Kesinger by Herrington. Count I

is a claim under 42 U.S.C. § 1983 (Section 1983) that Herrington violated
 Count II involved a claim against the JSO under the Americans with Disabilities Act

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(ADA), 42 U.S.C. § 12101 et seq. It was dismissed by the district court and is not part of this

appeal.

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Kesinger’s Fourth Amendment right to be free from unlawful seizure when

Herrington allegedly engaged in “excessive, inappropriate, unnecessary and

deadly force against [Kesinger] in the course of an investigatory encounter.” 

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Herrington, a police officer, claimed he was entitled to qualified immunity

for the shooting. The district court disagreed and denied his motion for summary

judgment. It found that due to conflicting testimony between Herrington’s

rendition of the facts, as the moving party, and one eyewitness’ rendition of the

facts, material issues of disputed facts existed. Therefore, in passing upon a

summary judgment motion, the district court was required to accept the version

most favorable to the non-movant, Kesinger.

II. FACTUAL BACKGROUND

A. Herrington’s Version of the Facts

During busy early morning rush hour traffic on Interstate-95, Herrington

was driving to work at the Police Memorial Building in downtown Jacksonville,

Florida, in his unmarked patrol car. He observed Kesinger, whom he perceived to

be a deranged, crazed man, standing in the middle of the interstate highway, facing

heavy oncoming traffic, with his hands raised, palms out, over his head. 
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Herrington stopped and parked his car in the inside emergency lane. He radioed

dispatch for assistance with an apparent suicide. Kesinger began walking from

lane to lane, in an apparent attempt to harm himself and others by purposefully

trying to stand in front of fast-moving cars and semi-trailer trucks.

Herrington was dressed in civilian clothes with a detective badge displayed

on his belt. Leaving his gun in its holster on the front seat of the car, he got out of

his car, yelled “HEY!” at the seemingly suicidal man, and motioned for him to get

out of the oncoming traffic immediately. In reaction, Kesinger turned and started

moving quickly toward Herrington, appearing angry and ready to fight, with his

arms raised, palms out, screaming obscenely: “You see this, you see this . . . I am

Jesus Christ, you motherfucker! I am going to die and so are you!”

Thus threatened, Herrington ran to his car for safety, rolled up the driver’s

side tinted window, locked the doors, and radioed for help a second time. By this

time, Kesinger had moved to the rear of Herrington’s car and started attacking the

car. Herrington testified that he heard an explosion similar to a gunshot blast from

the rear end of his car, and that the rear window broke inwardly. Herrington was

hit by the flying glass. He lay down across the front seat and unholstered his gun.

Kesinger then moved to the driver’s side window. Herrington heard another

gunshot-like explosion. His tinted side window broke in a spider-webbed pattern. 
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Now believing that Kesinger had shot at him twice, Herrington, crouching on the

front seat of his car, turned and fired in self defense through the spiderlike

window. 

Herrington then called dispatch a third time and told them that he had shot

his assailant. He asked for an ambulance and a supervisor. Herrington opened the

door, having to push hard against Kesinger’s body as he did so. He trained his

weapon on him until he determined that Kesinger was no longer a threat. Kesinger

had collapsed down the driver’s side door and lay on the ground, mortally

wounded.

B. Eyewitness William Michael Maley’s Version of the Facts

Although there were several eyewitnesses at the scene, the district court

focused only on the testimony of one individual, William Michael Maley, who

witnessed the shooting. Maley was in his car with his window down, moving

slowly through the rubbernecked traffic, when his car pulled first behind, and then

alongside, the passenger side of Herrington’s vehicle, and rolled to a stop. He

testified that he had a clear view of the altercation. 

Maley disputes Herrington’s statement that Kesinger struck the back of his

car only one time. Instead Maley claims that Kesinger struck the trunk of the car

multiple times with his fist, and then turned and struck the rear window five to
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seven times, actually chipping away at it with his fist until it broke through

entirely all the way up his arm. Maley also testified that Kesinger moved to the

driver’s side and banged on the roof. 

Maley claims that Kesinger then appeared to be exhausted. Kesinger moved

two steps back and to the right, took a few breaths, and appeared to cease his

attack. It was then, Maley claims, that Maley saw a light, which he perceived to

be the driver’s side door opening, and saw two shots fired through an open door,

not the spiderlike window, while Kesinger was in repose. Maley testified that

Kesinger fell, not forward, against the driver’s door, but backward, against the

center median concrete divider, before falling to the ground. 

Although not discussed by the district court, the affidavits and testimony of

two other eyewitnesses, Carolyn Williams and James Ammons, corroborate the

statements provided by officer Herrington and the physical evidence presented. 

They do not support the testimony provided by Maley. 

C. The Direct Physical Evidence Presented 

The forensic detective at the scene testified that photographic evidence

indicated: (1) that Herrington’s vehicle was not moved after the shooting; (2) that

Kesinger was not moved after he was shot; (3) that Kesinger was standing

immediately outside the car when he was shot, not five or six feet away against a
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concrete divider; (4) that his body lay, not near the divider but so close to

Herrington’s vehicle that his feet were photographed underneath the vehicle; (5)

that there was a bullet hole in Herrington’s driver’s side window; (6) that the angle

of the bullets indicated that a bullet went through the window from the inside out,

not through an open door; (7) that there was glass found on top of Kesinger’s

body, indicating his close proximity to the car; and (8) that Kesinger’s blood

covered the driver’s side window. 

Dozens of photographs were taken at the scene, both from a ground level

and an aerial view. They clearly depict the location of Herrington’s vehicle on the

interstate, the position of Kesinger’s body in relation to the car, and the broken

windows of Herrington’s car. The photographs are consistent with Herrington’s

testimony and the testimony of the forensic detective. They are inconsistent with

Maley’s perceptions.

III. STANDARD OF REVIEW

We review de novo the denial of a motion for summary judgment by a

district court on the basis of qualified immunity, construing all facts and making

all reasonable inferences in the light most favorable to the non-moving party. See

Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996). However, a mere

scintilla of evidence in support of the non-moving party’s position is insufficient
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to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 106

S.Ct. 2505 (1986).

IV. DISCUSSION

A. Excessive Force & Qualified Immunity

The affirmative defense of qualified immunity protects public actors from

liability unless their conduct violates “clearly established statutory or

constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 102 S.Ct. 2727 (1982). An officer will be entitled to qualified

immunity if his actions were objectively reasonable, that is, if an objectively

reasonable officer in the same situation could have believed that the force used

was not excessive. Anderson v. Creighton, 107 S.Ct. 3034 (1987). 

From a burden of proof standpoint, in order to receive qualified immunity,

the public actor must prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred. Vinyard v. Wilson, 311 F.3d

1340, 1346 (11 Cir. 2002) citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11 Cir. th th

2002)(internal quotation marks omitted). If he can do this, the burden then shifts

to the plaintiff to establish that qualified immunity is not appropriate. Id. 

Here it is clear that Herrington was acting within the scope of his

discretionary authority when he intervened in Kesinger’s apparent suicide attempt
 The Supreme Court in Graham made explicit what was implicit in Garner’s analysis,

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that is, “all claims that law enforcement officers have used excessive force – deadly or not – in

the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed

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and when the shooting occurred. Vinyard, 311 F.3d at 1346. Under Florida law,

even a private actor is justified in the use of deadly force if he reasonably believes

that such force is necessary to prevent imminent death or great bodily harm to

himself or to prevent the imminent commission of a forcible felony. See Fla. Stat.

§ 776.012. 

The burden then shifts to Kesinger’s estate to establish that Herrington

violated Kesinger’s constitutional rights. We must determine whether appellant’s

allegations, if true, illustrate that a constitutional violation has occurred. Vinyard,

311 F.3d at 1346; Saucier v. Katz, 121 S.Ct. 2151 (2001). If indeed a

constitutional right would have been violated under the appellant’s version of the

facts, we must next ask whether that right was clearly established. Id.

B. Excessive Force & Constitutional Violation 

The Fourth Amendment’s freedom from unreasonable searches and seizures

also encompasses the right to be free from the use of excessive force in the course

of an investigatory stop, or other “seizure” of the person. Graham v. Connor, 109

S.Ct. 1865, 1867 (1989); see Tennessee v. Garner, 105 S.Ct. 1694, 1699-1707

(1985). The “reasonableness” inquiry in an excessive force case is an objective

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under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive

due process” approach. Graham, 109 S.Ct. at 1871. 

 Analyzing the objective reasonableness of the force used “requires a careful balancing 3

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

the countervailing government interests at stake.” Graham, 109 S.Ct. at 1871 citing Terry, 105

S.Ct. at 1699. To determine whether the amount of force used by a police officer was proper, a

court must ask whether a reasonable officer would believe that this level of force is necessary in

the situation at hand. See Cottrell, 85 F.3d at 1492 (where the court considers the facts and

circumstances confronting an officer, without regard to the officer’s underlying intent or

motivation, to determine whether their actions are objectively reasonable). The objectively

reasonableness standard “requires 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.” Graham, 109 S.Ct. at 1875. 

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one: the question is whether the officer’s actions are “objectively reasonable” in

light of the facts and circumstances confronting him, without regard to his

underlying intent or motivation. Id. at 1872. It must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight. Id., citing Terry v. Ohio, 88 S.Ct. 1868, 1879-1881 (1968). 

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Appellant must establish that Herrington’s fatal shooting was objectively

unreasonable under the circumstances. Graham, 109 S.Ct. at 1872. We must

consider Herrington’s actions from the perspective of a reasonable officer on the

scene, rather than through the lens of hindsight, id., taking into account all of the

attendant circumstances. Id. at 1865.
 Herrington chose to stop and radio for help. In his unmarked patrol car, no one would 4

have known had he chosen not to.

 Herrington only recalls single blows by Kesinger to the back and side of the patrol car. 

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Maley testified that Kesinger inflicted multiple blows to the back of the car and also multiple

blows to the roof and side of the car. In each instance it seems that the blow that broke the rear

window and the blow on the driver’s side window conveyed to Herrington that shots had been

fired.

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Here Herrington encountered a highly volatile situation fraught with

danger. Kesinger, an obviously deranged and crazed man, was seemingly trying 4

to commit suicide by causing a motor vehicle to hit him on a busy interstate

highway. It is obvious that Kesinger posed an immediate threat of harm, not only

to himself and to Herrington, but to dozens of other motorists that morning.

Kesinger also behaved in an aggressive and belligerent manner. He turned

and moved quickly toward Herrington, angry and ready to fight with his arms

raised. He claimed to be Jesus Christ, and stated that he was going to die that day,

and that Herrington was going to die also. When he fired at Kesinger, Herrington

thought that Kesinger had shot at him first. 

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Maley’s version of the facts differed from Herrington’s but not in any

material way. Maley’s version should not be misconstrued as disputed merely

because they are taken out of context. 

As he drove by, Maley was able to provide only a “snapshot” version of

what happened on I-95 that day. He was neither privy to the series of events
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leading up to that snapshot, nor was he privy to the physical evidence at the scene

after he drove away. 

Due to the position of Maley’s car, in order to see the events leading up to

the shooting, Maley was forced to look through the tinted glass of the passenger

side window, across the front seat of the car, and through the glass on the driver’s

side. Maley could only see Kesinger from the shoulders up. 

Maley’s testimony, if accepted, would be the version most favorable to the

non-moving party. However, it is in direct conflict with the unanimous testimony

of the other eyewitnesses, and is contradicted by the undisputed, clearly

demonstrated, photographed physical evidence. 

In addition, Maley’s testimony is inconsistent with the initial written

statements that he made to the police, and which he readily admits that he

intentionally signed. Maley explains these inconsistences merely by saying that he

signed the statements, knowing them to be false at the time, because he wanted the

officers to leave and get out of his house. 

In his testimony, Maley states that he cannot explain why his perception of

the scene is inconsistent with the photographic evidence that he reviewed. 

Maley’s version of the facts is not substantial evidence and must be disregarded.
 The court in Vinyard identified three categories of fair and clear warning for us to 6

examine. Id. (1) First, we look to see whether the federal statute or constitutional provision is so

clear, and the conduct is so bad, that it precludes qualified immunity even in the total absence of

case law. Id. Second, if the conduct is not bad enough that it violates a constitutional provision

on its face, we look to case law that can be applied broadly to a number of factual situations. Id.

at 1351. Third, and finally, if no broad case law is applicable, we turn to case law precedent that

is tied to the facts. Id. 

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We conclude that there was no substantial evidence contrary to that of the

testimony of Herrington, Williams, Ammons, and the forensic detective on the

scene, and the photographic evidence admitted. A mere scintilla of evidence in

support of the non-movant is insufficient to defeat a motion for summary

judgment. Anderson, 106 S.Ct. at 2512. Herrington’s estate has not established

that the shooting was objectively unreasonable, given the circumstances. No

constitutional violation is present. 

C. Excessive Force & Clearly Established Law

Even if we were to assume hypothetically that Herrington actually did

violate Kesinger’s Fourth Amendment rights, it could not be said however that

Herrington violated any clearly established law. Before qualified immunity is

surrendered by an officer, he or she is entitled to fair and clear warning that the

challenged conduct violates federally protected rights. See Vinyard, 311 F.3d at

1350.

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 The closest case we have found is Mercado v. City of Orlando, ____ F.Supp.2d ____, 7

2004 WL 1443939 (M.D.Fla., 2004), where two police officers, faced with a man who was

threatening to commit suicide, who was holding a knife with two hands, pointing it at his heart

and refusing to drop it after being ordered at least twice to do so, shot the plaintiff in the head

with a Sage launcher, fracturing his skull and causing lasting brain damage. 

The district court found that because the officers were trying to resolve an attempted

suicide, rather than to halt the progression of a crime, the case did not fit neatly into the Graham

analysis (discussed above at our Part IV.B). Unlike the suicidal appellant in our case, the

plaintiff in Mercado did not pose an immediate threat to anyone, other than himself. Id. at * 4. 

He was neither aggressive nor belligerent. He did not threaten the officers verbally or physically. 

Id. Even then the Mercado district court found that clearly established law had not been violated

and that the officers were entitled to qualified immunity. Id. at * 7. The same is especially true

in our case.

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We have found no preexisting case law involving materially similar facts

that would give a reasonable police officer fair and clear warning that shooting a

crazed man, intent upon causing harm to himself and others, including the officer

who had retreated as far as possible, and has acted in self defense, violated the

Constitution. See Garrett v. Athens-Clarke County, Ga., ___ F.3d ___, 2004 WL 7

1700118 (11 Cir., July 30, 2004)(where defendants did not use excessive force th

when they fettered the plaintiff after he was made compliant through the use of

pepper spray). Here Herrington acted in self defense. He did not violate the

Constitution or any clearly established law. He is entitled to qualified immunity. 

 V. CONCLUSION

Based upon the foregoing, the judgment of the district court is reversed and

this case is remanded with instructions to grant his motion for summary judgment.

REVERSED and REMANDED with INSTRUCTIONS.