[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________________ ___ No. 16

- 14295

________________________ D.C. Docket No. 8:14

- cv - 01940

- MSS

- AEP
JASON C. TURK, AMANDA TURK , Plaintiff s - Appellants ,

versus TIMOTHY J. BERGMAN, Officer, individually, CITY OF TAMPA , D efendant s - Appellee s .

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

________________________ (April 14, 2017) Case: 16-14295 Date Filed: 04/14/2017 Page: 1 of 92 Befo r e TJOFLAT , HULL, and O’MALLEY , * Circuit Judges.
HULL , Circuit Judge : The plaintiffs, Jason and A manda Turk, appeal the district court’s grant of summary judgment in favor of the defendants, Officer Timothy Bergman , individually, and the City of Tampa. After review of the record and with the benefit of oral argument, we reverse. The Turks sued Officer Bergman and the City of Tampa for use of excessive
force in violation of the Fourth Amendment under 42 U.S.C. § 1983 (Counts I and IV) , state law battery (Counts II and I II) , and loss of consortium , against Bergman only (Count V). The district cou rt granted summary judgment on all counts, finding that Bergman acted reasonably when he shot Mr. Turk in the face twice and thus did not violate Mr. Turk’s constitutional rights

. Because the district court concluded there was no constitutional violation at all, the district court did not rule on the other grounds asserted by the City of Tampa’s motion for summary judgment on the plaintiffs’ § 1983 failure to train and discipline claims against it in Count IV, such as : (1) there were no substantially simil ar prior incidents indicating a need for better training in mental health crisis intervention that would demonstrate deliberate indifference ; (2) no evidence demonstrate d a failure of the City of Tampa to discipline officers; and

* Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit, sitting by designation.

Case: 16-14295 Date Filed: 04/14/2017 Page: 2 of 93 (3) the City of Tampa prov ided adequate crisis intervention training. 1 The district court also did not rule on Officer Bergman and the City of Tampa’s defense of statutory immunity to the state law battery claims in Counts II and III

. Based on th e record before us, we conclude that the district court erred in granting summary judgment on the constitutional violation issue

. 2 The record demonstrates massive disputes of material fact that preclude granting summary judgment on that Fourth Amendment ground

. See Fed. R. Civ. P. 56( a) (“ 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. ”). Viewing the facts in the light most favorable to the Turks, the evidence shows that jury issues exist as to whether Mr. Turk posed an immediate threat of serious bodily harm to the officers, which was required for Officer Bergman to use deadly force

. Sometime around 2:00 a.m. on January 9, 2014, Officer Bergman , along with sev eral other police o fficers , responded to a 911 call and was told that Mr.
Turk was contemplating suicide and might try to have the police kill him

. Despite

1 The § 1983 claim against the City of Tampa did not rely on a respondeat superior theory. Instead, the Turks alleged that the City of Tampa acted with deliberate ind ifference by failing to train its officers on ment al health crisis intervention.

2 We review an order granting summa ry judgment de novo , viewing the facts of the case in the light most favorable to the party opposing the motion. Vinyard v. Wilson , 311 F.3d 1340, 1346 n.7 (11th Cir. 2002). We therefore recite the facts in the light most favorable to the plaintiffs, eve n though the defendants dispute the plaintiffs’ version of the events. Id. at 1343 n.1. Case: 16-14295 Date Filed: 04/14/2017 Page: 3 of 94 this warning, there was no evidence that Mr. Turk was a suspect of a crime or a

t h reat to his family that night. U pon arrival , t he police officers found Mr. Turk sitting in his BMW. Mr. Turk was sitting in the driver’s seat and had a gun lying in the passenger’s seat. Mr. Turk heard “a startling voice” say “show us your gun.” I t was the only command Turk heard anyone give , and at that time Mr. Turk did not know who was speaking or that the police officers were there

. 3 Thus s tartled, Mr. Turk grabbed his gun with his right hand , while still holding his cell phone in his left. Under M r. Turk’s version of events, at no point did Mr. Turk raise the gun from his lap or point it at anyone or make any threatening moves

. Instead, s till seated, Mr. Turk turned his head around and saw several police officers behind him through the rear window of the car. Now realizing the police officers were there, Mr. Turk put the gun in his lap and moved his right hand to the BMW’s center console, where the window controls were located.
Mr

. Turk rolled down the rear passenger window about halfway and yelled “What for? What’s the point?” After responding, Mr. Turk started to turn his head

3 Even t he officers dispute what was said and by whom. Officer Christopher Laframboise testified that he and others loudly commanded Mr. Turk: “Let me see your hands” and “Show me your hands.” Officer Bergman , however, testified that he asked Mr. Turk to put the gun down , saying: “hey, Mr. Turk, I am Officer Bergm an with Tampa Police Department. . . . [W] hat I need you to do is, just put the gun down

. . . . [L] et’s talk about this

. ” In his affidavit, Bergman denies ever saying “show me your gun” because he “would never ask a person to take a gun and make it m ore readily available to shoot [him] .” Officer Carlos Rodriguez claim ed he heard commands to “drop the gun” from Bergman a nd other officers.

Case: 16-14295 Date Filed: 04/14/2017 Page: 4 of 95 back towards the front and felt a bullet enter his right cheek and come out the left side of his throat

. Officer Bergman had fired a volley of shots and had shot Mr. Turk. 4 At some unknown point, Mr. Turk’s gun fell from his lap to the car’s floorboard

. Mr. Turk recognized that he had been shot and heard the officers “aski ng if
anyone saw a gun, ” to which they responded “no.” Mr. Turk then picked up his cell phone with both hands and took a picture of himself. About one minute later, Officer Bergman shot Mr. Turk a second time , w ith the bullet e ntering roughly the same spot. Based on the facts v iewed in the light most favorable to the plaintiffs , Mr. Turk stayed seated in the BMW and only briefly held his gun in his hand , when he first heard the officers , and did not touch it again. Indeed, at the time Mr. Turk was first shot, Mr. Turk’ s gun was in his lap. Mr. Turk insists that he never raised the gun up at all and the evidence show ed that the gun fell from his lap to in between the seats. If Turk is believed, he never pose d a threat to the officers or anyone else

. In addition, the numerous and material inconsistencies in Officer Bergman’s own statements about the events of that night raise serious concerns about the

4 Officer Bergman testified that, before he shot, Mr. Turk had been talking to him and looking at him and then Mr . Turk leaned back over his right shoulder and raised the gun backwards towards Bergman. Mr. Turk expressly denies this.

Case: 16-14295 Date Filed: 04/14/2017 Page: 5 of 96 credibility of any of his testimony. For instance, Bergman provided inconsistent statements about when he first shot Mr. Turk. In a January 9, 2014 Internal Affairs interview, Bergman claimed that Mr. Turk raised the gun up and that he could not tell where the muzzle or the barrel was pointing. But then Bergman twice contradicted this. Specifically, i n a n April 23, 2014 interv iew, Bergman stated that the muzzle was facing back towards him, and in his later deposition, Bergman insisted that the muzzle was coming back in his direction. In another example, Bergman told conflicting stories about what he saw after he first shot Mr. Turk. In his deposition, Bergman claimed that he saw Mr. Turk had dropped the gun into his lap and was holding his cell phone in his right hand. In his affidavit, Bergman averred that Mr. Turk was still holding the gun and that he did not see Mr. Turk ha d a cell phone until after shooting him the
second time

. In his January 2014 interview, Bergman also claimed that everybody else yelled “gun” before he shot Mr. Turk the second time

. Yet in his later deposition, Bergman stated that he did not hear anyone else yell “gun” before he shot Mr. Turk the second time. When viewing the facts in the light most favorable to the plaintiffs , Mr. Turk was sitting in his BMW with a gun in h is lap that was never raised up, pointed , or even touched at the time of the shoo ting s .

Case: 16-14295 Date Filed: 04/14/2017 Page: 6 of 97 In addition, Mr. Turk made no threatening moves towards the police. See Mercado v. City of Orlando , 407 F.3d 1152, 1154, 1158 (11th Cir. 2005) (finding a Fourth Amendment violation when a person attempting suicide and holding a knife ignored two commands to drop the knife but made no threatening moves). A jury could believe that Mr. Turk did nothing to threaten the officers and that the officer s shot without provocation. See Lundgren v. McDaniel , 814 F.2d 600 , 60 3 (11th Cir. 1987) (finding that a jury could have reasonably believed the officers were never threatened by a weapon and acted without provocation when whether “the decedent stood up behind the desk, threatened the officers with a weapon, or fired a shot, were

. . . sharply contested ”). Importantly too, Mr. Turk was not committing a crime, resisting arrest, or even suspect ed of committing a crime. See Mercado , 407 F.3d at 1157 (stati ng that “[b] ecause this situation does not involve a criminal arrest, our fac ts do not fit neatly within the Graham framework” 5 and

“ because Florida does not recogni ze attempted suicide as a crime , it is impossible for this court to measure the ‘ severity o f the crime at issue ’ ” (citation omitted)). Accordingly, we cannot say that a police officer in Officer Bergman’s position would reasonably perceive Mr. Turk, a non - suspect sitting in the BMW, as posing an imminent threat of serious physical harm to the police officers on scene.
See Graham v. Connor , 490 U.S. 386, 396

– 97, 109 S. Ct. 1865, 18 71

- 72 (1989)

5 See Graham v. Connor , 490 U.S. 386, 396

– 97, 109 S. Ct. 1865, 18 71

- 72 (1989)

. Case: 16-14295 Date Filed: 04/14/2017 Page: 7 of 98 (setting forth the objective

- reasonableness test for the use of excessiv e force); Robinson v. Arrugueta , 415 F.3d 1252, 125 5 (11th Cir. 2005) (same). Furthermore, a s of January 9, 2014 , the law was clearly established that a police officer may not use deadly force without warning against a person who was

not committing a crime , resisting arrest, holding a weapon, or making any threatening moves. See Lundgren , 814 F.2d at 60 3 (concluding that police officers violated the Fourth Amendment when they “ were neither threatened by a weapon, nor appeared to be threatened by a weapon, nor were fired upon, but rather . . . without provocation shot at a nondangerous suspect”) ; Mercado , 407 F.3d at 1157

- 58 (concluding that a police officer violated the Fourth A mendment when he intentionally aimed at and shot the plaintiff in the head “ especially . . . in light of the fact that [the subject] had not made any threatening move s ”). 6 Accordingly, we must reverse the district court’s grant of summary judgment on all c ounts and remand for further proceedings. On remand the district

6 There are more recent decision s not extant at the time of this 2014 shooting and thus inapplicable here because we examine clearly established federal law at the time of the shooting

. Hope v. Pelzer , 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002)

. Those cases, however, are consistent with our holding here. See Wei land v. Palm Beach Cty. Sheriff’ s Office , 792 F.3d 1313, 13 26

- 27 (11th Cir. 2015) (finding allegations were sufficient to support an excessive force claim whe n two police officers found a young man with a mental health issue “ sitting on a bed and looking down at a shotgun that lay loosely in his lap ” and then shot him twice, then tasered him, and then beat him even though “[a]t no point did [the subject] ever raise the shotgun from his lap or point it in the direction of the Deputies” (internal quotation marks omitted)); see also Perez v. Suszczynski , 809 F.3d 1213, 1222 (11th Cir. 2016) (explaining that Eleventh Circuit “case law clearly establishes that the use of force against an arrestee who, inter alia , is not a threat, h as not exhibited aggressive behavior, and has not actively resisted arrest is excessive”).

Case: 16-14295 Date Filed: 04/14/2017 Page: 8 of 99 court in the first instance should consider the other defenses raised by Officer Bergman and the City of Tampa but not ruled on in the first summary judgment order. REVERSED AND REMANDED.

Case: 16-14295 Date Filed: 04/14/2017 Page: 9 of 9