Hector Santana v. Miami-Dade County, et al

Filing

Opinion issued by court as to Appellant Hector Santana. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14338
________________________
D.C. Docket No. 1:14-cv-20840-BB

HECTOR SANTANA,
as Personal Representative of the Estate of Michael Santana,
Plaintiff - Appellant,
versus
MIAMI-DADE COUNTY,
GERMAN ALECH,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 17, 2017)

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Before WILSON and JULIE CARNES, Circuit Judges, and WOOD, * Judge.
PER CURIAM:
Plaintiff appeals the district court’s order granting summary judgment to
Defendants on his 42 U.S.C. § 1983 unlawful entry and excessive force claims
asserted against Miami-Dade County police officer German Alech in his individual
capacity and on his state negligence and wrongful death claims asserted against the
County. All of these claims arise from the shooting of Plaintiff’s son, Michael
Santana, by Officer Alech while Alech and other Miami-Dade police officers were
executing a search warrant at Santana’s residence on March 7, 2012. We agree
with the district court that Officer Alech is entitled to qualified immunity on
Plaintiff’s § 1983 claims and that there is no basis for Plaintiff to recover against
the County on his negligence or wrongful death claims. Accordingly, we
AFFIRM the district court’s summary judgment order.
BACKGROUND
At the end of February 2012, a confidential informant told Miami-Dade
detective Louis Correa that marijuana was being sold at a Miami Lakes, Florida
residence where Plaintiff’s son, Michael Santana, lived at the time. Detective
Correa surveilled the residence and saw evidence of drug activity, including
multiple cars stopping by for brief periods of time and then leaving. Correa
*

Honorable Lisa Wood, Chief United States District Judge for the Southern District of Georgia,
sitting by designation.
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arranged for the confidential informant to make a controlled purchase on February
29, 2012, during which the informant bought ten grams of marijuana from a male
subject inside the residence.
On March 1, 2012, the day after the controlled purchase, Correa requested
that the Miami-Dade Special Response Team (“SRT”) assist in executing a search
warrant at the residence that was scheduled to occur on March 7, 2012.1 Correa
initiated his request for SRT assistance by submitting a computer-generated search
warrant information sheet. After reviewing the information sheet, SRT
commander Lieutenant Calvin James approved Correa’s request for assistance, and
assigned execution of the warrant to SRT team leaders Sergeant Luis Sierra and
Sergeant Mauricio Smith. The information sheet contained a subject line to
address “weapons, dogs, children” or other concerns with executing the warrant at
the residence. That space was marked “UNKNOWN” by Correa.
On March 5, 2012, Correa arranged for the confidential informant to make a
second controlled purchase, during which the informant bought ten more grams of
marijuana from the same male subject inside the residence. Correa testified that
the informant advised him after the second purchase that the subject carried a gun
on his person.

1

The SRT is an elite tactical unit utilized for executing high risk search warrants, among other
operations. The SRT is frequently called to assist in the execution of drug warrants due to the
propensity for drug dealers to be armed and violent.
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On March 6, 2012, the day after the second purchase, Correa prepared a
supplemental confidential informant report. The supplemental report described the
second purchase, including the procedures used to make the purchase and the
amount of marijuana involved, but it did not include any information about the
subject being armed.
On March 7, 2012, Correa appeared before state court judge Migna SanchezLlorens to obtain a search warrant for the residence. In an affidavit submitted in
support of issuing the warrant, Correa stated that he had received information from
a confidential informant that drugs were being sold at the residence. Correa
described his surveillance of the residence and the two controlled purchases made
there, but he did not include any information in the affidavit about the subject
being armed. Judge Sanchez-Llorens signed the warrant. The warrant did not
indicate that the subject was armed, but it did contain boilerplate language
referring to the potential presence of “firearms, magazines, projectiles, spent
casings, ammunition, holsters, and/or any other firearm paraphernalia.”
On the evening of March 7, 2012, after the warrant was signed, Correa
conducted a drive-by of the residence with Sergeants Smith and Sierra. Smith
testified that Correa told him during the drive-by that the subject inside the
residence was known to carry a gun on his person.

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After the drive-by, the SRT officers who were to be involved in executing
the warrant, including Officer Alech, met at a staging area for a pre-execution
briefing conducted by Smith and Correa. Smith testified that Correa advised all of
the officers during the briefing that the subject inside the residence was known to
carry a gun. Alech as well as Officer Garcia, another member of the SRT team,
confirmed that they were told during the pre-execution briefing that the subject
was armed. And Plaintiff concedes that, in fact, Santana always made it a point to
carry a loaded gun.
During the pre-execution briefing, the officers were given their assignments
for executing the warrant. Alech was assigned to be the shield operator, whose job
is to enter the residence first and then provide cover for the rest of the team as they
conduct the search.
Alech and the other officers traveled to the residence immediately after the
briefing and arrived there at approximately 8:20 p.m. Alech was wearing his
police-department-issued uniform, which contained police insignia and logos on
the chest and right and left shoulder area. In addition, Alech wore a ballistic
helmet and carried a black bulletproof shield with the word “POLICE” written on
it in white block lettering.
The parties dispute whether the officers knocked or announced their
presence before they entered the residence. Sergeant Smith and Officer Garcia
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testified that they and other officers yelled the words “police” and “search warrant”
as they approached the front door. However, Santana’s girlfriend, Brittany
Retkofsky, who was inside the residence when the officers approached, testified
that she did not hear any announcement. Santana’s neighbor, Rolando Valdes,
similarly testified that he saw the officers approach Santana’s residence but did not
hear an announcement. In addition, surveillance video recordings that captured the
approach suggest that the officers did not knock on the door before they entered
the residence. Thus, for purposes of this appeal, we assume the officers did not
announce their presence or knock prior to entering the residence.
When they reached the front door to the residence, the officers discovered it
was locked. They set a pry tool in the doorframe and forcibly opened the door.
Per the tactical plan, Alech was the first officer to enter the residence after the door
was forced open. Upon entry, Alech encountered a running wall directly in front
of him and he turned left and proceeded down a hallway created by the wall and
the front entrance. Officer Garcia turned left and followed Alech down the
hallway. The other officers turned right and moved down the hallway in the
opposite direction.
Santana and Retkofsky were in the residence when the officers entered. As
Alech walked down the hallway, he saw Santana run by with a gun in his hand.
Alech momentarily lost sight of Santana as Santana passed by Alech and took
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cover behind a nearby wall. When Alech regained sight of Santana, Santana had
assumed a crouched position that Officer Garcia, who was directly behind Alech at
the time, described as “threatening.” Santana was holding the gun in his hand and
pointing it in Alech’s direction.
As the officers entered the residence, they shouted “Get down on your
knees, get down.” Retkofsky complied, but Santana did not. When Alech
encountered Santana, he directed Santana to drop the gun. Again, Santana did not
immediately comply with this command. Alech testified that Santana never
dropped the gun, causing Alech to fear for his life and ultimately to shoot Santana.
Retkofsky confirmed that Santana never voluntarily got on his knees, 2 as directed
by the officers, and that he did not comply with the first command to drop the gun.
However, Retkofsky testified that when Alech gave a second command to drop the
gun, Santana said “Okay, okay, okay” and his “hands went up.” According to
Retkofsky, she saw the gun “slide” or “fall” as Santana’s hands went up, and then
she saw Santana, having been shot, “hit the floor.”
Retkofsky initially indicated that she did not know if Santana was still
holding the gun at the time of the shooting. She later stated that Santana did not
have the gun in his hands when he was shot. Construing the facts in favor of
Plaintiff, and assuming that Santana was no longer holding the gun at the precise
2

Retkofsky indicated in her testimony that Santana went down to his knees after he was shot,
but that the only part of his body that moved before the shots were fired was his hands.
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moment he was shot, it is evident from Retkofsky’s testimony that the shooting
occurred within a split second of the gun “falling” or “sliding” out of Santana’s
hands. Indeed, the parties agree that the entire encounter—from when the officers
entered the residence until Santana was shot—only lasted five to ten seconds.
Defendants asserted in their statement of undisputed material facts that the
encounter between Alech and Santana “occurred within a matter of seconds.” In
support of that assertion, Defendants cited the testimony of Sergeant Smith, who
stated that the first gunshot was fired within five to ten seconds of Alech’s entry
into the house. Plaintiff admitted this fact, which is not controverted by any
evidence in the record. In addition, Plaintiff affirmatively asserted in his own
statement of facts that the shooting occurred “less than six seconds from the
moment” the police entered the house.
Alech fired three shots at Santana, killing him on the scene. After the
shooting, Alech continued his search of the residence. During the search, Alech
recovered an additional handgun and an AR-15 submachine gun from Santana’s
bedroom.
Plaintiff filed this suit as personal representative of Santana’s estate. In his
amended complaint, Plaintiff asserted § 1983 illegal entry and excessive force
claims against Alech in his individual capacity and state negligence and wrongful
death claims against the County. Defendants filed a motion for summary judgment
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on all of Plaintiff’s claims, which the district court granted. The court found that
Alech was entitled to qualified immunity on the § 1983 claims because it was
undisputed that (1) Alech had information suggesting that the subject inside the
residence was an armed drug dealer, justifying a no-knock entry and (2) just prior
to the shooting, Santana had ignored commands to get down on his knees and drop
the gun he was holding and had pointed the gun in Alech’s direction, justifying
Alech’s use of deadly force.3

The court concluded that these undisputed facts

likewise precluded Plaintiff’s state claims against the County.
ANALYSIS
I.

Standard of Review
We review a district court’s order granting summary judgment de novo.

Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th
Cir. 2014). In conducting our review, we construe the evidence and draw all
inferences in favor of Plaintiff. Id. “Summary judgment is appropriate when
‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A mere
‘scintilla’ of evidence” is insufficient to withstand summary judgment. Walker v.

3

The court held in the alternative that Plaintiff lacked standing to assert an unlawful entry claim
because Santana was a “trespasser” in the residence at the time of the incident. Because we
resolve the case on qualified immunity grounds, we need not—and do not—determine whether
Santana was a trespasser for purposes of the unlawful entry analysis or otherwise address the
standing issue.
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Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Rather, “there must be enough of a
showing that the jury could reasonably find” for Plaintiff. Id.
Specifically with regard to qualified immunity, 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) (internal quotation marks omitted). Nevertheless, we view the facts
from Plaintiff’s perspective because the determinative issue on appeal is “not
which facts the parties might be able to prove, but, rather, whether or not certain
given facts” demonstrate a violation of clearly established law. Crenshaw v.
Lister, 556 F.3d 1283, 1289 (11th Cir. 2009). See also Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (noting “the importance of drawing inferences in favor of the
nonmovant” in the qualified immunity context).
II.

Plaintiff’s § 1983 Claims
A.

Unlawful Entry

The district court held that Alech was entitled to qualified immunity on
Plaintiff’s § 1983 unlawful entry claim. “Qualified immunity protects government
officials performing discretionary functions from suits in their individual capacities
unless their conduct 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)).
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Acting under the direction of the commanding sergeant of his team, Alech was
assisting in the execution of a search warrant, and thus engaged in a discretionary
duty, when he entered Santana’s residence. Accordingly, it is Plaintiff’s burden to
show that Alech is not entitled to qualified immunity. See id. at 995. To meet this
burden with respect to his unlawful entry claim, Plaintiff must demonstrate that
Alech’s entry into Santana’s residence violated a clearly established constitutional
right. See McCullough, 559 F.3d at 1205. We agree with the district court that he
cannot do so.
The Fourth Amendment, which protects against unreasonable searches and
seizures, ordinarily requires that an officer knock and announce his purpose before
forcibly entering a home to execute a search warrant. See Wilson v. Arkansas, 514
U.S. 927, 934 (1995). The requirement does not apply, however, where the officer
executing the warrant has “a reasonable suspicion that knocking and announcing
[his] presence . . . would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the destruction of
evidence.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). In the qualified
immunity context, the relevant inquiry is whether the officer had “arguable
reasonable suspicion” that a sufficient exigency existed to justify a no-knock entry.
Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009) (internal quotation
marks omitted). “In other words, we analyze whether a reasonable officer could
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have had reasonable suspicion that exigent circumstances, such as a threat of
violence and/or destruction of evidence, existed to justify the no-knock entry.” Id.
The required showing is “not high.” Richards, 520 U.S. at 394. See also Hudson
v. Michigan, 547 U.S. 586, 590 (2006) (“We require only that police have a
reasonable suspicion . . . under the particular circumstances that one of these
grounds for failing to knock and announce exists, and we have acknowledged that
[the] showing is not high.”) (internal quotation marks omitted); United States v.
Segura-Baltazar, 448 F.3d 1281, 1290 (11th Cir. 2006) (noting the Supreme
Court’s “observation that the officer’s burden ‘is not high’” to justify a no-knock
entry).
Undisputed evidence in the record shows that Alech had been told by the
investigating officer that the subject inside the residence to be searched on March
7, 2012 was a drug dealer with ready access to a gun, meaning that Alech thereby
had reason to believe the subject was armed: an exigency that we have held
justifies a no-knock entry. See Whittier, 581 F.3d at 1309 (granting qualified
immunity on an unlawful entry claim where the officer did not knock before
serving a search warrant on the home of a suspected drug dealer who had “ready
access to firearms”); see also United States v. Hromada, 49 F.3d 685, 689 (11th
Cir. 1995) (recognizing that “[g]uns and violence go hand-in-hand with illegal
drug operations”). To recap, Detective Correa learned from a confidential
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informant, and validated by conducting surveillance and arranging two successful
controlled purchases, that drugs were being sold out of Santana’s residence.
Correa testified that the confidential informant advised him, after the second
controlled purchase, that the subject inside the residence carried a gun on his
person. Correa testified, as did Sergeant Smith, and Officer Garcia, that this
information was shared with the SRT officers, including Alech, during a briefing
held immediately prior to execution of the warrant on March 7, 2012. Alech
likewise confirmed that he had been informed that the subject carried a gun on his
person. There is simply no evidence to refute the testimony of the officers on this
issue. Indeed, corroborating all of the above information, Plaintiff concedes that
Santana was dealing drugs and that he did in fact always make it a point to have a
loaded gun within arm’s reach.
Nevertheless, Plaintiff argues there is a question of fact as to whether Alech
actually received information suggesting that the subject inside the residence was
armed. In support of his argument, Plaintiff points to three documents: (1) the
search warrant information sheet submitted by Correa on March 1, 2012 to request
SRT assistance with the search, (2) the supplemental confidential informant report
prepared by Correa on March 6, 2012, and (3) the search warrant affidavit prepared
by Correa and presented to Judge Sanchez-Llorens on March 7, 2012. Contrary to
Plaintiff’s argument, none of these documents raises an issue of fact as to whether
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Alech received information suggesting—and thus giving him reasonable ground to
believe—the subject was armed.
As discussed above, the search warrant information sheet submitted by
Correa to the SRT team on March 1, 2012 contained a subject line to address
“weapons, dogs, children” or other concerns with executing the warrant at the
Property. This space was marked “UNKNOWN” by Correa. Plaintiff argues a
jury could reasonably infer from the “UNKNOWN” response that Correa lacked
any information to suggest there was a weapon in the residence. However, the
search warrant information sheet was generated by Correa on March 1, 2012.
Based on all the relevant evidence, Correa did not learn the subject was armed until
after the second controlled purchase was conducted on March 5, 2012. Thus, the
only inference that can be drawn from the search warrant information sheet is that
Correa did not know, as of March 1, 2012, whether any weapons were in the
residence, which says nothing about what Alech had been told prior to entering the
residence on March 7, 2012.
Correa testified that he did not have access to the search warrant information
sheet after he submitted it, and thus could not amend the sheet once he learned that
the subject was armed. For that reason, according to Correa, he typically provided
any new information—such as the weapons information provided by the
confidential informant after the second controlled purchase on March 5, 2012—
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directly to the officers who would be involved in executing the warrant. Again,
Correa’s testimony on this point is unrebutted.
As to the supplemental confidential informant report Correa prepared on
March 6, 2012 and the search warrant affidavit he executed on March 7, 2012, both
documents were created after Correa was advised that the subject was armed.
However, neither the supplemental report nor the search warrant affidavit
specifically seeks information about weapons. Nor does Plaintiff present any
evidence suggesting that weapons information should be expected to appear in
either of those documents. Correa testified, again unrebutted, that information
related to a suspect being armed would not ordinarily be included in either
document, both of which dealt with an ongoing narcotics investigation rather than
a weapons crime.
Finally, Plaintiff contends that Alech’s claim to have been aware that the
subject was armed prior to entry is undermined by a report prepared by Sergeant
Smith the day after the incident stating that the officers knocked and announced
their presence prior to entering the residence. According to Plaintiff, Smith’s
statement gives rise to the reasonable inference that the officers believed a proper
entry required compliance with the knock-and-announce rule. But as we explained
in Whittier, the fact that an officer claims to have knocked and announced prior to
entry—or believed he was required to knock and announce—does not alter the
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analysis. See Whittier, 581 F.3d at 1309–10 (noting that the officer’s “subjective
beliefs regarding the circumstances are irrelevant to the qualified immunity
inquiry”) (emphasis in original). Assuming there were objectively reasonable
grounds to believe the subject in the residence was an armed and dangerous drug
dealer, a no-knock entry was justified. See id. Undisputed testimony establishes
that Alech had objectively reasonable grounds for such a belief and, consequently,
that Alech is entitled to qualified immunity on Plaintiff’s illegal entry claim.
B.

Excessive Force

The district court held that Alech also was entitled to qualified immunity on
Plaintiff’s excessive force claim arising out of Santana’s shooting. Again, it is
undisputed that Alech was engaged in a discretionary duty when he shot Santana.
It is thus Plaintiff’s burden to show that qualified immunity is not appropriate by
demonstrating (1) the violation of a constitutional right (2) that was clearly
established at the time of the incident. See McCullough, 559 F.3d at 1205.
Viewing the evidence in the light most favorable to Plaintiff, neither prong is
satisfied in this case.
1.

Constitutional Violation

Plaintiff’s excessive force claim is analyzed under the “objective
reasonableness” standard of the Fourth Amendment. Plumhoff v. Rickard, 134 S.
Ct. 2012, 2020 (2014) (citing Graham v. Connor, 490 U.S. 386 (1989) and
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Tennessee v. Garner, 471 U.S. 1 (1985)). Reasonableness in this context depends
on all the circumstances relevant to an officer’s decision to use force and the
amount of force used. See id. We view the circumstances “from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Id. (internal quotation marks omitted). And we allow for the fact that officers are
often required to make “split-second 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).
It is reasonable, and therefore constitutionally permissible, for an officer to
use deadly force against a subject who poses an imminent threat of serious physical
harm to the officer or others. See Singletary v. Vargas, 804 F.3d 1174, 1181 (11th
Cir. 2015) (“We have held that it is reasonable, and therefore constitutionally
permissible, for an officer to use deadly force when he has probable cause to
believe that his own life is in peril.”) (internal quotation marks omitted); JeanBaptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (“Although suspects have
a right to be free from force that is excessive, they are not protected against a use
of force that is necessary in the situation at hand.”) (internal quotation marks
omitted). The relevant inquiry in the qualified immunity context is whether an
officer in the defendant’s position reasonably could have perceived the subject to
pose such a threat. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
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1246 (11th Cir. 2003) (finding no constitutional violation where the defendant
officer shot a suspect he “could reasonably [have] perceive[d]” to pose “an
imminent threat of violence to the officer and other bystanders”). The officer is
entitled to qualified immunity unless “every reasonable officer” in his position
“inevitably” would conclude that deadly force was unnecessary and thus unlawful
under the circumstances. See Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1559
(11th Cir. 1993).
The record evidence unequivocally supports Alech’s claim that an
objectively reasonable officer could have perceived Santana to pose an imminent
and serious threat at the time of the shooting. Alech was advised in the preexecution briefing that the subject inside the residence to be searched was a
suspected drug dealer who was known to be armed with a gun. The accuracy of
that information was confirmed immediately after Alech entered the residence and
encountered Santana running through the residence with a gun in his hand.
Dressed in his police uniform and carrying a black shield with the word “POLICE”
written on it in white block lettering, Alech ordered Santana to drop the gun, and
either Alech or another officer instructed Santana to “Get down on your knees, get
down.” Santana refused to comply with these commands, instead running past
Alech, causing Alech to momentarily lose sight of Santana. When Alech regained
sight of Santana, Santana was crouched against a wall—in a position that Officer
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Garcia described as “threatening”—still holding the gun and pointing it in Alech’s
direction. Alech testified that Santana never dropped the gun, and fearing for his
life, Alech shot Santana.
Citing Retkofsky’s deposition testimony, Plaintiff argues that there is a
question of fact as to whether Santana had surrendered—and thus no longer posed
a serious threat—at the time he was shot. Having carefully reviewed Retkofsky’s
testimony, we do not believe it supports an inference that “every reasonable
officer” would have understood that Santana no longer posed an imminent threat
when he was shot, as required to overcome qualified immunity. See Post, 7 F.3d at
1559. Indeed, Retkofsky’s testimony corroborates Alech’s account of the most
critical events leading up to the shooting. Retkofsky acknowledged that Santana
had a gun in his hands when the officers entered the residence. Retkofsky testified
that she heard the officers saying “get down on your knees” and that she complied
with this command the first time it was given, but Santana did not. Retkofsky
stated that the officers repeated the command to “get down” and also ordered
Santana to put the gun down, but Santana still did not comply. Instead, according
to Retkofsky, Santana remained standing against a wall, holding the gun in both of
his hands and pointing it in the direction of the officers.
Only at this point does Retkofsky’s testimony diverge from Alech’s
testimony, with Retkofsky claiming that after the officers gave an additional
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command to drop the gun, Santana said “Okay, okay, okay” and his “hands went
up.” According to Retkofsky, the gun then “slid” or “fell” from Santana’s hands
and Santana “hit the floor,” having been shot. As mentioned above, Retkofsky
testified inconsistently as to whether Santana was still holding the gun when he
was shot. Nevertheless, even drawing the most positive inference from
Retkofsky’s testimony—that the gun “slid” or “fell” from Santana’s hands at the
same time, or possibly after, Santana’s hands “went up” (that is, Santana was not
still holding the gun at the precise moment when he was shot), the shooting
necessarily occurred within a split second of the gun leaving Santana’s hands.
Retkofsky’s testimony suggests that Santana might have intended to begin
the process of surrendering immediately prior to being shot. But we cannot infer
from her testimony that every reasonable officer would have intuited from
Santana’s ambiguous act—occurring at most just a split second before Alech
fired—that Santana no longer posed a serious threat at the time of the shooting.
Based on Retkofsky’s testimony, Santana had ignored at least one command to
drop the gun he was holding, and he never voluntarily got down on his knees
before the shots were fired. After he was instructed a second time to drop the gun,
Retkofsky says Santana said “Okay, okay, okay” and moved his hands “up.” But
to the extent that he even had time to process this action before firing, Alech could
reasonably have interpreted the statement and movement as an escalating threat
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rather than as an attempt to surrender, particularly given that the gun had not “slid”
or “[fallen]” from Santana’s hands until the same time as, or possibly even after,
his hands began moving up. See McCormick, 333 F.3d at 1246 (granting qualified
immunity on an excessive force claim where the plaintiff claimed to have raised
his hands in “submission” just prior to being shot, but acknowledged that he was
still holding a stick in his hands when he raised them, such that the defendant
officer “could reasonably [have] perceive[d]” that the plaintiff “posed an imminent
threat of violence to the officer and other bystanders”); cf. Salvato v. Miley, 790
F.3d 1286, 1293 (11th Cir. 2015) (concluding that an officer used excessive force
when she shot a suspect who had formerly resisted, but who was retreating,
unarmed, and outside of striking distance at the time of the shooting) and Perez v.
Suszczynski, 809 F.3d 1213, 1219 (11th Cir. 2016) (holding that an officer used
excessive force when he shot a subject who had been disarmed and who was
“subdued, compliant, and on the ground . . . on his stomach with his arms
restrained” at the time of the shooting).
Finally, we cannot over-emphasize that the parties agree, and that both
parties affirmatively assert, that the entire encounter—from when Alech entered
the residence until Santana was shot—lasted only five to ten seconds. During that
short period of time, it is undisputed that Santana, a suspected drug dealer, ran
through the residence with a gun in his hand, ignored multiple commands to get on
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his knees and at least one command to drop the gun he was holding, and assumed a
crouching position that Officer Garcia described as “threatening” while pointing
the gun in Alech’s direction. Crediting Retkofsky’s testimony and assuming that
Santana said “okay” and began to move his hands up after he was directed a
second time to drop the gun, Alech was forced in that moment to make a splitsecond decision whether to employ deadly force in the “tense and dangerous
situation” that confronted him. To defeat qualified immunity, Plaintiff would have
to persuade us that “every reasonable officer” would have concluded that deadly
force was unnecessary and thus unlawful under the circumstances. We are not
persuaded. See Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (noting that we
are “loath to second-guess” an officer’s “split-second” decision that is necessitated
by a “tense, uncertain, and rapidly evolving” situation in the field); Garczynski v.
Bradshaw, 573 F.3d 1158, 1166–70 (11th Cir. 2009) (concluding that the
defendant officers reasonably reacted with deadly force to the imminent threat
posed by a suicidal man who was ignoring their commands to drop the gun he was
holding and to show his hands).
2.

Clearly Established Law

Even assuming a constitutional violation, Alech is entitled to qualified
immunity unless Plaintiff can show that Santana’s right not to be subjected to
deadly force under the particular circumstances surrounding his shooting was
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“clearly established” at the time of the incident. See 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
violating it.” Id. “The salient question is whether the state of the law at the time of
[the] incident provided fair warning to the defendant[] that [his] alleged conduct
was unconstitutional.” Tolan, 134 S. Ct. at 1866 (internal quotation marks omitted
and alterations adopted).
Fair warning is 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 case directly
on point is not required as long as “existing precedent” placed the “constitutional
question beyond debate.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (internal
quotation marks omitted). See also Youmans v. Gagnon, 626 F.3d 557, 563 (11th
Cir. 2010) (“[J]udicial precedent with materially identical facts is not essential for
the law to be clearly established.”).
As suggested by the above discussion, there is no caselaw that would have
put Alech on notice that his conduct was unlawful. In support of his claim that
Alech violated “clearly established” law, Plaintiff cites Priester v. City of Riviera
Beach, 208 F.3d 919 (11th Cir. 2000); Lee v. Ferraro, 284 F.3d 1188 (11th Cir.
2002); and Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000). All of those cases
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involved officers using force on individuals who were already handcuffed or
otherwise securely in police custody. In Priester, the plaintiff was unarmed and
presented no threat of harm as he immediately submitted to the police and
complied with their instruction to lie down on the ground, but the defendant officer
repeatedly ordered his dog to attack the plaintiff anyway. Priester, 208 F.3d at
923. In Lee, the defendant officer took the plaintiff—who already had been
arrested and was secured in handcuffs—to the back of her car and slammed her
head against the trunk. Lee, 284 F.3d at 1198. And in Slicker, the officers hit the
plaintiff’s head on the pavement, kicked him, and knocked him unconscious after
he was handcuffed and in spite of the fact that he did not “resist, attempt to flee, or
struggle with the officers in any way.” Slicker, 215 F.3d at 1233.
No imminent danger confronted the defendant officers in the above cases, as
it did Alech when he faced a subject who in the split second prior to the use of
force (1) was armed with a gun he had pointed at Alech while crouched in a
“threatening” position and (2) had ignored multiple commands to get on his knees
and at least one command to drop the gun. Unlike the plaintiffs in Lee and Slicker,
Santana was not secured and handcuffed when Alech shot him. And unlike the
plaintiff in Priester, Santana was armed with a gun and crouched behind a wall,
not lying on the ground complying with the commands given by officers,
immediately prior to the shooting. Thus, neither Priester, Lee, nor Slicker could
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have given Alech “fair warning” that his use of deadly force under the very
different circumstances he faced while executing the search warrant at Santana’s
residence on March 7, 2012 was unconstitutional. See Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (emphasizing that the “dispositive question is whether the
violative nature of particular conduct is clearly established”) (emphasis in
original) (internal quotation marks omitted); White v. Pauly, 137 S. Ct. 548, 552
(2017) (reiterating the “longstanding principle that clearly established law should
not be defined at a high level of generality” but rather “particularized to the facts of
the case”) (internal quotation marks omitted). As Plaintiff does not cite any other
caselaw that could have put Alech on notice that his actions were unlawful, he has
failed to meet his burden of showing the violation of a “clearly established” right.
III.

Plaintiff’s State Claims
A.

Negligence

Plaintiff’s negligence claim against the County is based on the same facts as
his § 1983 illegal entry claim. Specifically, Plaintiff alleges that the officers
negligently entered Santana’s residence “by failing to give sufficient and adequate
notice to the occupants inside the home that they were police officers.”4 Plaintiff
apparently concedes that he can only succeed on his negligence claim if we reverse

4

Plaintiff also claims that the officers “negligently failed to adequately secure the perimeter
near the home prior to forcibly entering.” However, he does not allege that any harm or damages
resulted from that particular failure.
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the district court’s ruling that a no-knock entry was reasonable under the
circumstances. Having affirmed the district court’s holding on that issue, we
likewise affirm the court’s summary judgment order as to Plaintiff’s negligence
claim because Plaintiff cannot show that the County breached any duty to Santana
related to the entry. See Fla. Dep’t of Corr. v. Abril, 969 So. 2d 201, 204 (Fla.
2007) (“To maintain an action for negligence, a plaintiff must establish that the
defendant owed a duty, that the defendant breached that duty, and that this breach
caused the plaintiff damages.”).
B.

Wrongful Death

Plaintiff’s wrongful death claim against the County fails for similar reasons.
Plaintiff argues the County is liable for Santana’s death because: (1) the officers
made an unlawful entry, imposing liability on the County for the events that
occurred thereafter, and (2) there is a dispute of fact as to whether it was
reasonable for Officer Alech to shoot Plaintiff under the circumstances. Having
determined that the no-knock entry and the use of force were objectively
reasonable under the circumstances, there is no basis for Plaintiff to prevail on his
wrongful death claim. Accordingly, we affirm the district court’s order granting
summary judgment to the County on Plaintiff’s wrongful death claim.

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CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting
summary judgment on Plaintiff’s § 1983 unlawful entry and excessive force claims
and on his state negligence and wrongful death claims.

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