[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-10614

Non-Argument Calendar

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D.C. Docket No. 9:14-cv-80403-DTKH

LYDIA ADAMS, 

as personal representative of the estate of Seth Adams, 

for the benefit of Lydia Adams, 

RICHARD ADAMS, 

surviving parent, 

SETH ADAMS, 

the estate, 

 Plaintiffs - Appellees,

versus

SHERIFF OF PALM BEACH COUNTY, FLORIDA,

Ric L. Bradshaw, in his official capacity,

 Defendant,

MICHAEL M. CUSTER, 

in his individual capacity, 

 Defendant - Appellant.

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________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(November 22, 2016)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM: 

On the night of May 16, 2012, Defendant Michael Custer, while conducting 

an undercover surveillance operation for the Palm Beach County Sheriff’s Office,

parked his unmarked police vehicle in the parking lot of a plant nursery. Seth 

Adams, an employee of the nursery who resided on the premises, confronted 

Custer about his presence there. Custer fatally shot Adams after an alleged scuffle.

Plaintiff Lydia Adams (“Plaintiff”), Seth’s mother, sued Custer in his individual 

capacity under 42 U.S.C § 1983, alleging that he violated Adams’ Fourth 

Amendment rights by using excessive force against Adams. Custer asserted 

qualified immunity as a defense and moved for summary judgment. The district 

court denied Custer’s motion, and this appeal followed. Finding that there is a 

genuine dispute of material fact regarding the circumstances of the shooting, we 

AFFIRM the district court’s denial of summary judgment. 

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I. BACKGROUND

A. Factual Background

There are two versions of the facts in this case. Before the district court, 

Defendant offered a specific chronological recitation of the events that led to his 

shooting Adams. Plaintiff is unable to offer, with any specificity, a differing 

summary of the events because the only other eyewitness to the shooting was the 

victim of that shooting, Seth Adams, and he is dead. Nonetheless, Plaintiff 

disagrees that the events could have occurred as Defendant described them, and 

she produced forensic evidence as well as the testimony of other witnesses that call 

into question the truthfulness of Defendant’s explanation. We set out first the 

Defendant’s version of the facts. Then, we set out the evidence offered by Plaintiff 

that contradicts Defendant’s testimony, along with the impact of that evidence on 

the credibility of Defendant’s account. 

At the time of the incident giving rise to this case, Defendant Michael Custer 

(“Defendant”) was a sergeant with the Palm Beach County Sheriff’s Office

(PBSO). He was assigned to PBSO’s Tactical Unit (TAC), where his 

responsibilities included performing undercover surveillance operations. On the 

night of the shooting, he was on duty participating in such an operation. Due to the 

nature of the operation, Defendant was driving an unmarked police SUV and 

dressed in plain clothes. Although he was wearing a TAC tee-shirt under his plain 

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gray button-up shirt and a badge clipped to his belt, Defendant wore his button-up 

shirt untucked, which may have concealed the badge on his belt during his 

encounter with Adams.

Seth Adams was an employee of A One Stop Garden Shop, which owned 

the parking lot where the shooting happened. Adams also lived on the premises in 

a residence behind the nursery, which was adjacent to the parking lot. That night, 

Adams was wearing a work shirt with A One Stop Garden Shop’s company logo 

on the front and back. 

Shortly after 11:00 p.m., Defendant backed his vehicle into the parking lot of 

A One Stop Garden Shop, which was closed. A sign that read “NO PARKING 6 

PM TO 6 AM VEHICLES WILL BE TOWED” was posted in the parking lot, 

though Defendant claims to not have seen the sign. Defendant chose this parking

spot to take advantage of the darkness there, and remained in his vehicle with the 

engine running and the lights off.

Around 11:40 p.m., Seth Adams drove his pickup truck into the parking lot 

and parked parallel to Defendant’s vehicle, facing the other direction. The two 

drivers faced each other from 10 to 15 feet away, each now with his window down.

Defendant stated that Adams immediately began “screaming” and demanding, 

“Who the f*** are you? What the f*** are you doing here?” Defendant identified 

himself as a law enforcement officer and showed Adams his ID, but Adams exited 

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his vehicle empty-handed and rapidly approached Defendant’s vehicle. Defendant 

then exited his vehicle and tried again to show his ID to Adams and explain his 

presence there. Defendant did not use any device to illuminate his ID, and both he 

and Adams were behind the headlights of Adams’ truck. 

Defendant claims that Adams “sat there listening to [him]” for a “couple of 

seconds,” but then suddenly grabbed Defendant by the throat. Defendant says he 

broke free from Adams’ grip on his neck, although the two continued to grapple 

briefly. Defendant was finally able to extricate himself after hitting Adams with a 

chest strike, which created some space between himself and Adams. Defendant 

then drew his firearm, pointed it at Adams, and ordered him to the ground, 

declaring Adams to be under arrest. Adams, still empty-handed, did not heed the 

instructions, but walked back and forth in front of Defendant, “hovering” about 

five feet away. Defendant backed towards his vehicle to retrieve a radio from the 

front seat, which he used to request backup. The standoff continued, and Adams 

then ran towards the open door of his truck, not heeding Defendant’s orders to 

stop, to stay away from the truck, and to get on the ground. Defendant then kicked 

the open door of Adams’ truck shut, pinning Adams between the door and the 

vehicle’s frame. 

The two struggled there briefly. In the statement in which he first recounted 

the “pinning” incident, Defendant said he held Adams pinned in the door frame 

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while Adams was “moving around . . . trying to get out of the door” and screaming 

profanities “the whole time.” Defendant said he perceived that Adams “was trying 

to get a weapon,” and was “convinced he had obtained a weapon” when he “saw 

[Adams’] arms coming around.” Defendant then fired four rounds at Adams. 

In a later statement, Defendant elaborated on the above account, claiming he 

saw Adams “fishing around” the interior of the truck while he was pinned in the 

doorframe. In this account, Defendant says he held his firearm in his left hand as 

he wrapped his right arm around Adams’ head and neck in an effort to pull Adams 

away from the truck. Adams suddenly yelled, “F*** you, as loud as he could, and 

came spinning out of the truck.” At this point, Defendant says he fired his first 

shot, and then fired three more as he backed away from Adams.

In short, the account offered by Defendant indicates that prior to the

shooting, a profane and angry Adams had struggled violently with Defendant and 

tried to choke Defendant around the neck. Running away from Defendant, Adams 

tried to get into his truck. Defendant blocked his exit from the truck, pinning 

Adams inside the truck with the truck’s door pressed against him. But Adams, 

who appeared to be making an effort to obtain a weapon inside the truck, suddenly 

spun out of the truck and toward Defendant, who was standing at the truck’s door, 

and loudly shouted F*** you. At that point, fearing for his life, Defendant shot 

Adams. Adams died two hours later.

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Plaintiff disputes the truthfulness of Defendant’s account and offered 

evidence that the district court concluded to have contradicted and substantially 

undermined Defendant’s account of the events. First, Defendant stated that Adams 

had grabbed Defendant’s neck and throat “as hard as a man can grab you.” Yet, 

there was no redness or bruising on Defendant’s neck. Nor did the DNA swab 

conclusively reveal any DNA from Adams. 

Key to Defendant’s ultimate explanation for shooting Adams was his 

assertion that Adams had made his way back to his truck at the point at which he 

spun back on Defendant, standing right next to the door of the truck. As noted, 

Defendant thought Adams might have gotten hold of a gun inside the truck. Yet, 

as pointed out in the district court’s order, Plaintiff produced forensic evidence 

supporting a conclusion that Adams was actually shot, not inside or near the open 

door of the truck, but instead as he was standing at the rear of the truck. From this 

the district court concluded: “[Defendant’s’] claim that he fired his first shot after 

Adams—standing pinned between the driver’s side door and vehicle frame . . .—

suddenly broke free from [Defendant’s] chokehold and spun around shouting 

obscenities, is thus at complete odds with forensic, blood, and ballistic 

evidence . . . .” 

Further undermining the credibility of Defendant’s statement regarding the 

above incident as the event precipitating Defendant’s decision to shoot is the fact 

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that Defendant failed to mention this event immediately after the shooting, instead 

explaining that he shot Adams because the latter tried to choke Defendant. It was 

only in a later account given in the presence of his attorney that Defendant 

mentioned this second incident inside Adams’ truck. Further, critical to the 

accuracy of Defendant’s recounting of the above conduct by Adams is the fact that 

Adams was allegedly pinned inside his truck with its door open. Yet, investigation 

immediately after the shooting showed the door of the truck to be closed.

As to one more detail in Defendant’s first description of the initial 

encounter, Defendant stated that Adams had been hostile and aggressive from the 

outset and that after Defendant identified himself as a law enforcement officer, 

Adams kept screaming and “acting like a lunatic.” But another law enforcement 

officer from Defendant’s team had been driving by and observed the initial 

encounter between Defendant and Adams. This officer, Agent Drummond, 

indicated that he saw Defendant get out of his vehicle, while Adams was standing 

between the two vehicles, and it appeared that Defendant was talking to Adams, 

with nothing appearing to be wrong. Less than 90 seconds later, Agent Drummond 

heard on his radio another agent broadcast a warning that shots had been heard in 

the area, and moments later he heard Defendant’s call for back-up. However, 

according to Custer, he had initially called for back-up before any shots were fired, 

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and had later issued a second call for back-up in which he noted that he had shot a 

man who had attacked him. 

Taking the above evidence proffered by Plaintiff in the light most favorable 

to Plaintiff, the district court concluded that one could infer that Adams was not 

shot as described by Defendant (that is, there was no effort by Adams to choke 

Defendant and no assault initiated by Adams from inside his truck), but instead 

that he was shot at the back of his truck by Defendant, who had no reason to 

believe that Adams was armed or otherwise posed any danger.

B. Procedural History

Plaintiff sued both Ric Bradshaw in his official capacity as Sheriff of Palm 

Beach County and Defendant in his individual capacity under 42 U.S.C. § 1983. 

Plaintiff alleged that Defendant violated Adams’ Fourth Amendment rights by

shooting him, and his Fourteenth Amendment due process rights by failing to 

administer first aid afterwards. Sheriff Bradshaw was sued under a Monell theory 

of supervisory liability. Plaintiff also brought wrongful death claims against both 

defendants under Florida state law. 

The district court granted summary judgment in favor of Defendant on the 

due process claim and Bradshaw on the supervisory liability claim, and partial 

summary judgment for both defendants on the state law wrongful death claim. The 

district court denied Defendant’s motion for summary judgement on qualified 

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immunity grounds for the Fourth Amendment claim. Defendant appeals the 

district court’s denial of his motion. 

II. DISCUSSION

A. Jurisdiction

As a preliminary matter, Plaintiff argues that this Court lacks jurisdiction to 

consider Defendant’s appeal because the appeal merely challenges the district 

court’s determination that material facts are genuinely in dispute. While it is true 

that an interlocutory appeal is not available for such a challenge, see Moniz v. City 

of Fort Lauderdale, 145 F.3d 1278, 1280 (11th Cir. 1998), Plaintiff 

mischaracterizes Defendant’s appeal. Defendant contends on appeal that his 

actions did not violate a clearly-established constitutional right. This contention 

raises legal issues, giving us jurisdiction to hear an interlocutory appeal. Plumhoff 

v. Rickard, 134 S. Ct. 2012, 2019 (2014). In addition, we have jurisdiction to hear 

“those evidentiary sufficiency issues that are part and parcel of the core qualified 

immunity issues, i.e., the legal issues.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 

(11th Cir. 1996) (internal footnote omitted). In sum, we have jurisdiction over this 

appeal because it raises the legal question of whether, after construing facts in 

favor of Plaintiff, Defendant violated clearly established constitutional law. Id. at 

1485 (noting the Court’s interlocutory jurisdiction “in qualified immunity cases 

where the denial is based even in part on a disputed issue of law”).

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B. Standard of Review

We review de novo a district court’s disposition of a summary judgment 

motion based on qualified immunity and apply the same legal standards as the 

district court. Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). We 

resolve any factual disputes in the plaintiff’s favor and then decide whether that 

version of the facts entitles the defendant to qualified immunity. Id.; see also 

Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (“Our qualified-immunity cases 

illustrate the importance of drawing inferences in favor of the nonmovant . . . .”).

Consequently, 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), and Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3

(11th Cir. 2000)). Nevertheless, we view the facts from the plaintiff’s perspective 

because the determinative issue on appeal is “not which facts the parties might be 

able to prove,” but whether “certain given facts” demonstrate a violation of clearly 

established law. Crenshaw v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009).

C. Whether Defendant Was Entitled to Qualified Immunity

1. Standard

Qualified immunity completely “protects government officials performing 

discretionary functions from suits in their individual capacities unless their conduct 

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violates ‘clearly established statutory or constitutional rights of which a reasonable 

person would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 

2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). To obtain qualified 

immunity, a public official must first show that he was engaged in a discretionary 

duty when the allegedly wrongful act occurred. Id. at 995. Here, there is no 

dispute that Defendant was acting within his discretionary authority when he shot 

Adams. The burden thus shifts to Plaintiff to show that qualified immunity is not 

appropriate. Id. 

Plaintiff must satisfy a two-part test to meet her burden. McCullough, 559 

F.3d at 1205. First, she must show that Defendant’s conduct violated a 

constitutional right. Id. Assuming a violation occurred, Plaintiff must also show 

that the right was clearly established at the time of the incident. Id. Viewing the 

facts in the light most favorable to Plaintiff, we conclude that both prongs are 

satisfied here.

2. Was there a constitutional violation?

Plaintiff’s deadly-force claim is analyzed under the objective reasonableness 

standard of the Fourth Amendment. Plumhoff, 134 S. Ct. at 2020 (citing Graham 

v. Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985)). 

The reasonableness standard “requires a careful balancing of the nature and quality 

of the intrusion on the individual’s Fourth Amendment interests against the 

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countervailing governmental interests at stake.” Id. (internal citations omitted). 

Reasonableness in this context depends on all the circumstances relevant to an 

officer’s decision to use force and the amount of force used. Jean–Baptiste v. 

Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010). We view the circumstances “from 

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

vision of hindsight.’” Plumhoff, 134 S. Ct. at 2020 (quoting Graham, 490 U.S. at 

396–97). And we allow for the fact that officers are often required to make “splitsecond judgments—in circumstances that are tense, uncertain, and rapidly 

evolving—about the amount of force that is necessary in a particular situation.” Id. 

(internal quotation marks omitted).

When considering whether a use of deadly force was reasonable, relevant 

circumstances include “the seriousness of the crime, whether the suspect poses an 

immediate danger to the officer or others, whether the suspect resisted or attempted 

to evade arrest, and the feasibility of providing a warning before employing deadly 

force.” Jean-Baptiste, 627 F.3d at 821. We also have observed that an officer may 

constitutionally use deadly force when he:

(1) “has probable cause to believe that the suspect poses a threat of 

serious physical harm, either to the officer or to others” or “that he has 

committed a crime involving the infliction or threatened infliction of 

serious physical harm”; (2) reasonably believes that the use of deadly 

force was necessary to prevent escape; and (3) has given some 

warning about the possible use of deadly force, if feasible.

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

(11th Cir. 2003)).

Construing the facts in Plaintiff’s favor, Adams had neither tried to choke 

nor otherwise assaulted Defendant. Defendant had no reason to believe that 

Adams was armed or had attempted to obtain a weapon. Nevertheless, for reasons 

not made clear, he shot Adams to death as the latter was standing near the rear of 

his truck. The question then is whether it was reasonable for Defendant to use 

deadly force against Adams under these circumstances. The answer, obviously, is 

that it was not reasonable. While an officer may use deadly force in self-defense if 

an individual poses an immediate threat of serious physical harm, “[a] police 

officer may not seize an unarmed, nondangerous [person] by shooting him dead.” 

Garner, 471 U.S. at 11. Thus, under the facts as construed above, Defendant 

violated Adams’ Fourth Amendment rights through his unreasonable use of deadly 

force.

3. Did the law clearly establish that shooting Adams under the above 

circumstances was in violation of his Fourth Amendment rights?

Even assuming a constitutional violation, Defendant is entitled to qualified 

immunity unless Plaintiff can show that Adams’ Fourth Amendment rights were 

“clearly established” at the time of the shooting. Plumhoff, 134 S. Ct. at 2023. To 

be clearly established, the contours of a right must be “sufficiently definite that any 

reasonable official in the defendant’s shoes would have understood that he was 

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violating it.” Id. “The salient question is whether the state of the law at the time of 

an incident provided ‘fair warning’ to the defendant[] that [his] alleged conduct 

was unconstitutional.” Tolan, 134 S. Ct. at 1866 (internal quotation marks 

omitted).

Fair warning is most commonly provided by materially similar precedent 

from the Supreme Court, this Court, or the highest state court in which the case 

arose. See Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012). However, a 

“judicial precedent with materially identical facts is not essential for the law to be 

clearly established.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010). 

Authoritative judicial decisions may “establish broad principles of law” that are

clearly applicable to the conduct at issue, and it may also be obvious from “explicit 

statutory or constitutional statements” that certain conduct is unconstitutional. 

Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208–09 (11th Cir. 2007); see also

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (“We do not require a case directly 

on point, but existing precedent must have placed the . . . constitutional question 

beyond debate.” (internal quotation marks omitted)).

At the time Defendant shot Adams, the law was clearly established that the 

use of deadly force against an unarmed, non-threatening, and non-fleeing 

individual is unconstitutional. See, e.g., Garner, 471 U.S. at 11 (“Where the 

suspect poses no immediate threat to the officer and no threat to others, the harm 

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resulting from failing to apprehend him does not justify the use of deadly force to 

do so.”); Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) 

(intentionally shooting a non-threatening individual in the head at close range with 

a non-lethal round was clearly-established excessive force); Lundgren v. 

McDaniel, 814 F.2d 600, 603 (11th Cir. 1987) (“[S]hooting a suspected felon who 

was apparently neither fleeing nor threatening the officers or others was—even in 

July, 1983—an unreasonable seizure and clearly violated [F]ourth [A]mendment 

law.”) (internal footnote omitted); Pruitt v. City of Montgomery, 771 F.2d 1475 

(11th Cir. 1985) (shooting an unarmed burglary suspect who posed no risk of harm 

to police or others was unconstitutional).

The law being clearly established, Plaintiff has shown that both prongs of 

the qualified immunity test are met. Accordingly, we affirm the district court’s 

denial of summary judgment to Defendant on his qualified immunity defense. 

AFFIRMED.

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