Kesinger ex rel. Estate of Kesinger v. Herrington

Decision Date26 August 2004
Docket NumberNo. 03-13883.,03-13883.
Citation381 F.3d 1243
PartiesDarlene 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, v. Thomas HERRINGTON, Defendant-Appellant, Nathaniel Glover, Sheriff of the Consolidated City of Jacksonville, Defendant.
CourtU.S. Court of Appeals — Eleventh Circuit

T.A. Delegal, III, Delegal Law Offices, P.A., Jacksonville, FL, for Herrington.

Robert L. McLeod, II, Lisa B. Taylor, The McLeod Firm, Pierson, FL, for Conner.

Appeals from the United States District Court for the Middle District of Florida.

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.


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 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."1

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.

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. 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. 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 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 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.


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 to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 (11th Cir.2002) citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.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 and when the...

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