Onree Norris v. Jermaine Hicks

O
       USCA11 Case: 20-11460   Date Filed: 05/05/2021   Page: 1 of 24



                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-11460
                      ________________________

                  D.C. Docket No. 1:18-cv-02163-MLB



ONREE NORRIS,


                                                           Plaintiff-Appellant,



                                versus


JERMAINE HICKS,
DAVID CODY,
DAVID LEMACKS,
JEROME MOORE,
STEVEN PARRISH, et al.,


                                                        Defendants-Appellees.
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                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                   (May 5, 2021)

Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:

      This appeal arises from the execution of a no-knock search warrant at an

incorrect address. Officers executed the warrant at 303 English Road in

McDonough, Georgia, the home of Onree Norris, but they should have executed it

at 305 English Road, the house next door—which was reportedly the home of

Gemar Watkins, a known violent drug dealer. Because of the high-risk nature of

executing the search warrant on Watkins’s home, two teams including over 24 law

enforcement officers participated in the execution of the warrant. Officers initially

approached 305 English Road but thought it was not the target of the warrant

because it was an abandoned, dilapidated, uninhabitable “storage out-building” and

officers understood the target to be an occupied, “normal” home. Unfortunately

for Norris, the team of officers then mistakenly thought his home, approximately

40 yards away, was the actual target and raided it.

      Norris filed suit under 42 U.S.C. § 1983 against Capt. David Cody and other

officers involved in the execution of the warrant, alleging a violation of his Fourth


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Amendment rights.1 The district court granted Capt. Cody’s motion for summary

judgment because it found that he was entitled to qualified immunity from Norris’s

claims.

       Norris appeals from the district court’s grant of summary judgment and

argues that Capt. Cody violated his clearly established rights based on his role in

the mistaken execution of the search warrant. Because we agree that Capt. Cody

did not violate clearly established law, we affirm the district court’s grant of

summary judgment. Norris also appeals from the district court’s denial of his

motion to amend his complaint to add another defendant, Agent Eric Kendig, after

the amendment deadline had passed. Because the district court’s denial of Norris’s

motion was not an abuse of discretion, we also affirm that decision.

                                     I.     Background

       Two law enforcement groups were involved in the execution of the search

warrant at Norris’s house. First, the Flint Circuit Drug Task Force—a group

comprised of agents from several different law enforcement agencies that

specializes in drug-related investigations—performed the initial investigation of

Watkins and obtained a search warrant for 305 English Road. Second, the Henry



       1
           Norris also sued Jermaine Hicks, David Lemacks, Jerome Moore, Stephen Parrish, and
other unidentified officers. Norris agreed below that Hicks, Lemacks, Moore, and Parrish were
entitled to qualified immunity on his claims, so the only claim remaining on appeal is the claim
against Cody.

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County Sheriff’s Office Special Response Team—a group of 21 agents that

specializes in executing search and arrest warrants—assisted the Task Force with

the execution of the search warrant because the Task Force anticipated the

execution to be especially dangerous.2 Former defendants Hicks, Lemacks,

Moore, and Parrish are Task Force agents, and Capt. Cody is the Commander of

the Response Team.

       A.      The Task Force Investigation

       The Task Force began investigating Watkins after receiving numerous tips

in 2016 and 2017 that he was selling drugs from his home at 305 English Road. In

addition to those reports, the Task Force was informed that Watkins had pointed a

gun at, and threatened to kill, two parents who confronted him at his home after he

sold drugs to their son. In early 2018, a confidential informant reported to the Task

Force that: (1) he regularly purchased drugs from Watkins at 305 English Road;

(2) Watkins and his associates carry guns at the residence; (3) Watkins’s friends

and family live nearby and warn Watkins when police are around; (4) Watkins uses

surveillance cameras at his house; and (5) that “everyone is scared of [Watkins]

because he has a violent reputation and constantly threatens people with being

shot.” Task Force agents also obtained a video from Watkins’s social media


       2
          The Task Force believed the execution of the warrant would be especially dangerous
because of its prior attempts to surveil the property, the counter-surveillance measures Watkins
had in place, and Watkins’s violent reputation.
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account in which Watkins and an associate are depicted using a firearm to threaten

and assault an elderly man.

      But investigating Watkins’s home was no easy feat. In September 2017, the

Task Force tried to conduct surveillance at 305 English Road but were

immediately chased away by three or four people standing in front of the property.

Specifically, men at the property got in a car and followed the two Task Force

agents at a high speed, “pretty much” bumper-to-bumper, for about five to ten

miles. Based on his view of the property during the surveillance attempt, one of

the Task Force agents believed the home at 305 English Road looked “rundown”

but “habitable” and “typical to the other houses in the area.”

      In late January 2018, two Task Force agents drove by 305 English Road and

saw seven or eight people there, someone standing on the front porch, and several

abandoned cars and car parts scattered in the yard. One Task Force agent

described this drive-by surveillance as “lucky” because the property was usually

too dangerous for officers to visit. Based on this drive-by, agents testified the

house’s exterior siding was “off-white,” the roof was black, “it looked like an

active residence, and did not appear to be abandoned in any manner.”

      After using a confidential informant to complete a controlled purchase at

305 English Road, one of the Task Force agents obtained a no-knock search

warrant for the property. The warrant described 305 English Road as “a one story


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single-family residence, with off white siding,” “a black roof,” and a “black

mailbox on a wooden post” displaying the address and Watkins’s name.

      B.     Pre-Execution Briefing

      After obtaining the warrant, the Task Force sought assistance from the

Response Team due to the anticipated “violence threat” involved in executing the

warrant. No one from the Response Team, including Capt. Cody, had been to 305

English Road previously. While the Response Team usually conducts drive-by

surveillance of a target property before executing a warrant, it was unable to do so

here because of the safety risks involved and the risk of getting spotted by Watkins

and his associates.

      On February 8, 2018, agents from the Task Force and the Response Team—

including Capt. Cody—met to prepare to execute the search warrant. Agent Hicks,

a Task Force Agent, delivered a PowerPoint presentation to everyone involved in

the execution of the warrant (including all 21 Response Team agents) that included

an aerial image of the home’s location on a map, driving directions to the home, an

overview of events leading to the search warrant, and Watkins’s profile. The

presentation also warned the agents that several people with firearms might be

present and that Watkins had children.

      During the presentation, Agent Hicks described 305 English Road as

Watkins’s residence, “off-white” in color, with broken-down cars in the yard. He


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also stated that the search warrant, which included a more detailed description of

Watkins’s home, was “available for review,” but he testified that he did not recall

anyone reviewing the search warrant at the briefing nor any Response Team agent

reviewing the warrant before the briefing. Capt. Cody testified that he reviewed

the search warrant to make sure it was signed, confirmed it authorized no-knock

entry, and confirmed the address matched the address used in the PowerPoint

presentation, but admitted that he did not read it “all the way through.” 3 Because

the Task Force was responsible for ensuring the Response Team knew the target’s

location and the Response Team relied on the Task Force to describe the target

property and to take them to it, Capt. Cody explained that typically he does not

review the warrant’s property description before completing a raid.

       Agent Hicks explained during the briefing that the Task Force was

responsible for securing the grounds around the target residence and vehicles in the

yard while the Response Team was responsible for entering and securing the

house. Capt. Cody was the leader of the Response Team and exercised “overall


       3
          For the first time in Norris’s reply brief, he argues that whether Capt. Cody read the
search warrant is a disputed fact based on Agent Hicks’s testimony that he did not recall any
other officers asking to look at the search warrant during the briefing. We generally do not
consider issues raised for the first time in an appellant’s reply brief. Access Now, Inc. v. Sw.
Airlines Co., 

385 F.3d 1324

, 1331 (11th Cir. 2004) (explaining that generally, we will not
consider an issue not raised in the district court for the first time on appeal); KMS Rest. Corp. v.
Wendy’s Int’l, Inc., 

361 F.3d 1321

, 1328 (11th Cir. 2004) (“[A] party cannot argue an issue in its
reply brief that was not preserved in its initial brief.” (quotation omitted)). In any event, whether
Capt. Cody reviewed the search warrant is not determinative of whether he is entitled to qualified
immunity.
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tactical control,” but he delegated authority to Agent Kendig to control the

Response Team’s movement into the house. After Agent Hicks finished his

presentation, Capt. Cody provided tactical instructions to the agents so that

everyone understood their role in the operation.

      C.     Executing the Search Warrant

      After the briefing, the Response Team, including Capt. Cody, followed two

Task Force agents to 305 English Road. The sun was setting when they arrived.

Several Task Force Agents drove separately to the woods surrounding the target

property to look for and apprehend anyone fleeing the target residence. The agents

knew there was another “drug house” in the area so they were worried about

people running between the two houses.

      Capt. Cody wore a body camera which recorded video showing the

Response Team, dressed in tactical gear and holding weapons, pull up on a dirt

path leading to the side of 305 English Road. The footage shows that the house

had abandoned cars and parts scattered around the dirt yard. After exiting their

vehicles, the agents threw two flash grenades near the house that created a bright

flash, followed by smoke and a loud noise. Agents testified that they threw the

grenades to distract and disorient the people with weapons they expected to

encounter at the property.




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       Immediately after the explosions, a few agents approaching from the front of

the house apprehended and handcuffed a man in the yard. The rest of the

Response Team, led by Capt. Cody, walked towards the side of the house with

their guns raised. Though the state of the house was not apparent from a distance,

as they got closer to it, Capt. Cody and Agent Kendig realized it was severely run

down and dilapidated. The house had holes on the exterior, car parts laying inside,

and it had no windows, doors, electricity, running water, appliances, carpet, or

sheet rock walls. Capt. Cody and Agent Kendig believed it was uninhabitable,

abandoned, and a “storage out-building” rather than a house. Because Capt. Cody

and Agent Kendig understood the search warrant was for an occupied residence,

they mistakenly concluded the structure was not 305 English Road.

       As the group moved through the backyard of 305 English Road, the video

shows that Capt. Cody slowed down and the rest of the Response Team continued

past him through some trees. While Capt. Cody hung back, a group of Response

Team agents deployed two flash grenades and then forcibly entered a nearby

yellow house whose lights were on and apprehended Norris, who was inside.4 All



       4
           The video shows that the Response Team arrived at Norris’s residence very quickly
after the raid began. After spending about thirty seconds walking towards and behind 305
English Road, the team continued past it to the second house. The team never stopped moving
and never communicated by radio with Capt. Cody or anyone else. Capt. Cody testified that the
Response Team normally does not communicate over the radio during an operation until after
they secure a house for safety reasons.

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of these events occurred within approximately a minute and a half of the officers’

arrival on the scene.

       Norris’s house was approximately forty yards from 305 English Road,

separated only by a few trees. The house, like 305 English Road, sat on a large

grassy dirt clearing surrounded by trees. The video shows that the color and

design5 of the two houses have some similarities, but Norris’s home was yellow

while 305 English Road was a slightly lighter off-white color. Capt. Cody testified

that sometime during the briefing he had been told the target residence was yellow,

but he could not remember who told him this fact.6

       Capt. Cody followed the rest of his team into Norris’s home less than a

minute after they entered. Capt. Cody testified that at that point, he “wasn’t sure”

this second house was the target residence, but “[t]hings were moving really fast”

and he assumed Agent Kendig and the rest of the team had “acquired information

that justifiably led them to proceed to the second structure.” Shortly after the

Response Team mistakenly entered Norris’s house, Task Force agents informed

them that they had raided the wrong house. Capt. Cody later worked with Norris

to repair the damage caused by the agents to his home.



       5
          Both structures appear from the video to be one story, single-family houses with brick
pillars and covered with siding of a similar material.
       6
           Agent Hicks testified that, during his presentation at the briefing, he told the officers
that the target residence was “off-white,” not yellow.

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       D.      Lawsuit

       In May 2018, Norris sued Capt. Cody and several Task Force agents under

42 U.S.C. § 1983 for searching his home and seizing his person without a search

warrant or probable cause in violation of the Fourth, Fifth, and Fourteenth

Amendments. 7 On April 1, 2019, about two months after discovery closed and

almost a year into the case, Norris moved to amend his complaint to add Agent

Kendig as a defendant. The next day, the defendants moved for summary

judgment based on qualified immunity. In response, Norris agreed that the Task

Force agents he sued were entitled to qualified immunity, but Norris maintained

that Capt. Cody was not entitled to immunity because he violated clearly

established law as “any reasonable officer in Cody’s position would understand

that entering, and allowing his subordinates to enter, [Norris’s] home would violate

the law.”

       The district court denied as untimely Norris’s motion to amend his

complaint to add Agent Kendig as a defendant. Because Norris moved to amend

his complaint more than seven months after the scheduling order deadline for



       7
          The district court determined that Capt. Cody was entitled to summary judgment on
Norris’s Fifth and Fourteenth Amendment claims because Norris’s allegations “center on an
unlawful search and seizure and should be analyzed under the Fourth Amendment, not the due
process clauses of either the Fifth or Fourteenth Amendment.” Norris does not challenge this
holding and his arguments on appeal relate to his Fourth Amendment claim. Accordingly, we
only address Norris’s Fourth Amendment claim.

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amendments passed, the district court analyzed his request under Federal Rule of

Civil Procedure 16(b)’s stringent good cause standard and found that Norris failed

to show good cause for not moving to amend his complaint earlier in the

proceedings. The district court pointed out that Norris obtained significant

information about Agent Kendig’s involvement in the raid months before he

sought to amend his complaint.

      The district court then granted Capt. Cody’s motion for summary judgment

because it found that Norris failed to meet his burden to show that Capt. Cody’s

involvement in the raid violated clearly establish law. Specifically, the district

court found that the case Norris relied on to establish that Capt. Cody violated

clearly established law, Hartsfield v. Lemacks, 

50 F.3d 950

(11th Cir. 1995),

differed materially from this case. The court outlined seven key factual differences

between Hartsfield and this case to support its conclusion. This appeal followed.

                                  II.      Discussion

      On appeal, Norris argues that the district court erred in finding that Capt.

Cody was entitled to qualified immunity because Capt. Cody violated clearly

established law during the mistaken raid of Norris’s home. He also argues that the

district court abused its discretion in denying his motion to amend his complaint to

add Agent Kendig as a defendant. We address each argument in turn.




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       A.      Qualified Immunity

       We review the district court’s grant of summary judgment based on qualified

immunity de novo. Crocker v. Beatty, 

886 F.3d 1132

, 1136 (11th Cir. 2018).

Summary judgment is appropriate 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.” Fed. R. Civ. P. 56(a). We accept Norris’s version of the facts as true and

draw all reasonable inferences in his favor. 

Crocker, 886 F.3d at 1134

.

       Qualified immunity shields “government officials performing discretionary

functions . . . from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.”8 Harlow v. Fitzgerald, 

457 U.S. 800

, 818 (1982).

This immunity allows government officials “to work without fear of liability,

protecting ‘all but the plainly incompetent or those who knowingly violate the

law.’” Corbitt v. Vickers, 

929 F.3d 1304

, 1311 (11th Cir. 2019) (quoting Malley v.

Briggs, 

475 U.S. 335

, 341 (1986)).

       “To overcome a qualified immunity defense, the plaintiff must make two

showings.”

Id. “First, []he ‘must

establish that the defendant violated a

constitutional right.’”

Id. (quoting Griffin Indus.,

Inc. v. Irvin, 

496 F.3d 1189

,


       8
          Norris does not dispute that Cody was performing a discretionary function during the
raid. See 

Hartsfield, 50 F.3d at 953

(explaining that officers executing a search warrant at the
wrong address were “no doubt” acting “within their discretionary authority”).

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1199–1200 (11th Cir. 2007)). Second, he must demonstrate that “the violated right

was ‘clearly established.’”

Id. Courts can determine

which prong to assess first

“in light of the circumstances in the particular case at hand.”

Id. (quoting Pearson

v.

Callahan, 

555 U.S. 223

, 236 (2009)).

      In determining whether the violated right was clearly established, “[e]xact

factual identity with a previously decided case is not required, but the unlawfulness

of the conduct must be apparent from pre-existing law.” Coffin v. Brandau, 

642

F.3d 999

, 1013 (11th Cir. 2011); see also Merricks v. Adkisson, 

785 F.3d 553

, 559

(11th Cir. 2015) (“Minor variations in some facts . . . might be very important and,

therefore, be able to make the circumstances facing an official materially different

than the pre-existing precedents[.]”(quotation omitted)). Rather, in this case, “[t]he

critical inquiry is whether the law provided [Capt. Cody] with ‘fair warning’ that

his conduct violated the Fourth Amendment.” McClish v. Nugent, 

483 F.3d 1231

,

1248 (11th Cir. 2007) (quoting Hope v. Pelzer, 

536 U.S. 730

, 741 (2002)). This

inquiry is undertaken “in light of the specific context of the case, not as a broad

general proposition.” 

Coffin, 642 F.3d at 1013

(quotation omitted). “Such

specificity is especially important in the Fourth Amendment context, where the

Supreme Court has recognized that it is sometimes difficult for an officer to

determine how the relevant legal doctrine . . . will apply to the factual situation the

officer confronts.” Williams ex rel. J W v. Birmingham Bd. of Educ., 

904 F.3d

14

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1248, 1260 (11th Cir. 2018) (quotation omitted; alterations adopted). In

determining whether the law was clearly established at the time of the alleged

violation, we look only to binding precedent, which consists of cases from the

United States Supreme Court, the Eleventh Circuit, and the highest court of the

state under which the claim arose. 

Coffin, 642 F.3d at 1013

.

       A “‘basic principle of Fourth Amendment law’ [is] that searches and

seizures inside a home without a warrant are presumptively unreasonable.”

Hartsfield, 50 F.3d at 954

(quoting Payton v. New York, 

445 U.S. 573

, 586

(1980)). It is undisputed that the officers did not have a warrant or probable cause

to search Norris’s home. But a warrantless search of a home based on an officer’s

mistake does not violate the Fourth Amendment where the officer’s “conduct was

consistent with a reasonable effort to ascertain and identify the place intended to be

searched within the meaning of the Fourth Amendment.” Maryland v. Garrison,

480 U.S. 79

, 88–89 (1987).

       To establish that Capt. Cody’s conduct during the raid violated clearly

established law, Norris points to the Supreme Court’s decision in Garrison and our

decision in Hartsfield. 9 In Garrison, the Supreme Court considered the



       9
         Norris also points to Treat v. Lowe, 668 F. App’x 870 (11th Cir. 2016), an unpublished,
non-binding case that he argues establishes that Capt. Cody violated clearly established law. But
Norris cannot rely on this case to meet his burden. See 

Coffin, 642 F.3d at 1013

(explaining that
we look only to binding precedent to determine clearly established law).

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constitutionality of an accidental search of the wrong apartment. There, officers

obtained a search warrant for the “third floor apartment” of a particular 

complex.

480 U.S. at 80

. When the police applied for the warrant and conducted the search,

they reasonably believed that there was only one third floor apartment “based on a

verification of information obtained from a reliable informant, an exterior

examination of the three-story building . . . , and an inquiry of the utility

company.”

Id. at 81.

In fact, there were two different apartments on the third floor

of the complex, and police officers began searching the wrong one while executing

the warrant and found illegal drugs.

Id. at 80.

The defendant moved to suppress

the evidence discovered during the mistaken search of his apartment.

Id. at 80–81.

The Supreme Court held that the evidence was not required to be suppressed under

the Fourth Amendment because “the officers’ conduct was consistent with a

reasonable effort to ascertain and identify the place intended to be searched within

the meaning of the Fourth Amendment.”

Id. at 88–89.

The Court further

explained, however, that “[i]f the officers had known, or should have known, that

the third floor contained two apartments before they entered the living quarters on

the third floor, and thus had been aware of the error in the warrant, they would

have been obligated to limit their search to [the target] apartment.”

Id. at 86.

We

later acknowledged that after Garrison, “it was . . . clearly established law that,

absent probable cause and exigent circumstances, a warrantless search of a


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residence violates the Fourth Amendment, unless the officers engage in reasonable

efforts to avoid error.” 

Hartsfield, 50 F.3d at 955

.

      In Hartsfield, we considered whether Garrison clearly established that an

officer violated the Fourth Amendment when he mistakenly led his team to the

wrong residence to execute a search warrant.

Id. at 951–52.

Before obtaining a

search warrant, the officer in Hartsfield accompanied a confidential informant to

the target residence to purchase marijuana.

Id. at 951.

The officer stayed in his car

while the informant made the purchase.

Id. Later that same

day, the officer

obtained a search warrant for the target residence.

Id. The next afternoon,

that

same officer mistakenly led law enforcement agents to the wrong house to execute

the search warrant.

Id. at 951–52.

He forcibly opened the door to the plaintiff’s

home with a battering ram and other agents went inside.

Id. at 952.

The plaintiff

sued that officer and other officers involved in the raid under 42 U.S.C. § 1983 for

violating his Fourth Amendment rights.

Id. While we held

the other officers

involved in the raid were entitled to qualified immunity, we also held that the

officer who obtained the warrant and led the officers to the wrong house was not

entitled to qualified immunity.

Id. at 955

, 956. 

We emphasized that the lead

officer had been to the target home the day before the raid, the lead officer had the

warrant in his possession but did not check to make sure he was leading the

officers to the correct address, the numbers on the house were clearly marked, the


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raid took place in the daylight, and the target residence and the residence searched

were “distinguishable.”

Id. at 955

. 

The target house—5108 Middlebrooks—was a

corner house on a dead-end street with junk cars reportedly strewn outside.

Id. In

contrast, the

searched house—5128 Middlebrooks—was further down the block,

separated by at least one other house, and had a fence around it.

Id. at 952.

      Based on these facts, we held that Garrison clearly established that an

officer who “[does] nothing to make sure that he was leading the other officers to

the correct residence” to execute a search warrant was not entitled to qualified

immunity.

Id. at 955

(emphasis added). While we recognized “the need to allow

some latitude for honest mistakes that are made by officers in the dangerous and

difficult process of making arrests and executing search warrants,” we found the

lead officer’s actions in Hartsfield were not “consistent with a reasonable effort to

ascertain and identify the place intended to be searched” as dictated by Garrison.

Id. (quoting Garrison, 480

U.S. at 87–89).

      We must determine whether Capt. Cody’s actions during the raid—not

commanding his team to stop heading towards Norris’s home and then following

his team into Norris’s home—violated the law clearly established in Garrison and

Hartsfield. To do so, we “compare the facts of the case before [us] with those

cases that [Norris] contends show the clearly established nature of the law.”

Merricks, 785 F.3d at 559

.


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      Norris asserts that this case is like Hartsfield because: (1) the raids were

carefully staged and there were no exigent circumstances or probable cause to

enter the properties the officers entered; (2) the target residence and the plaintiff’s

residence were different colors and physically distinguishable; and (3) Capt. Cody

had “seen” the search warrant prior to the raid like the officer in Hartsfield. While

there are some basic similarities between Hartsfield and this case, we agree with

the district court that the factual differences are significant enough that our prior

precedent did not clearly establish that Capt. Cody’s conduct violated Norris’s

rights during the mistaken execution of the raid.

      Unlike the officer in Hartsfield, who had been to the target residence

previously but did nothing to ensure that he led the other officers to the correct

address, Capt. Cody was not involved in the preliminary investigation of Watkins

and the target property and had never seen the target property before executing the

warrant. Rather, Capt. Cody was brought in as a specialist to help execute the

warrant and relied on the briefing of the Task Force, which was responsible for the

preliminary investigation and leading the Response Team to the target residence.

During the Task Force briefing, the Task Force described the target residence,




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showed an aerial picture of the target residence, and displayed the proper target

address.10

       Further, in Hartsfield, the officer went directly to the wrong residence,

whereas in this case, Capt. Cody and the Response Team initially went to the

correct address based on their briefing. However, when they arrived at the

residence, it did not match the description from the Task Force briefing because

the house had been abandoned and looked like a “storage out-building” rather than

a habitable residence, as the briefing explained. This mismatch led members of the

Response Team to conclude that the house next door, Norris’s house, must be the

actual target residence.

       The situation facing Capt. Cody was also different than the situation facing

the officer in Hartsfield because of the anticipated dangers at Watkins’s house—

the target residence. Unlike the relative ease of surveilling the target residence in

Hartsfield, officers attempting to gather information had been chased from the

vicinity of Watkins’s home. Officers had also received numerous reports of guns,

violence, lookouts, and Watkins’s violent prior actions before executing the

warrant. During the pre-execution briefing, Capt. Cody and the Response Team

learned of Watkins’s dangerous nature, the possibility of multiple people with



       10
          A picture or drive-by view of the target residence was not available to Capt. Cody
because of the difficulties and dangers in surveilling the property.
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firearms at the target property, the risk of nearby “lookouts” and people fleeing to

nearby houses, and the possibility that children could be present at the target

property, enhancing the danger and sensitivity of executing the warrant in a safe

and timely manner.

      Simply put, this case was not a situation envisioned by Garrison where

Capt. Cody failed to engage “in reasonable efforts to avoid error” or a situation like

in Hartsfield where the officer did “nothing” to avoid the mistake. Rather, Capt.

Cody and the other officers involved carefully planned a high-risk raid at what was

thought to be a dangerous target house but made a mistake when faced with an

unexpected circumstance—the residence not matching the description given. The

team was especially limited in their ability to respond to this unexpected

circumstance because they had “announced” their presence with flash grenades, it

was unsafe to communicate via radio, and they were forced to make a split second

decision. Our precedent allows some latitude for such “honest mistakes . . . made

by officers in the dangerous and difficult process of making arrests and executing

search warrants.” 

Hartsfield, 50 F.3d at 955

(quoting 

Garrison, 480 U.S. at 87

).

While the mistaken raid of Norris’s home was no doubt traumatic, given the

significant factual differences between Capt. Cody’s actions in the raid and our

prior precedent, we agree with the district court that Norris failed to meet his

burden to show that Capt. Cody violated clearly established law.


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      B.      Motion to Amend

      Norris argues the district court abused its discretion in denying his motion to

amend his complaint to add Agent Kendig as a defendant. Norris asserts that he

demonstrated good cause for the amendment because the evidence supporting the

proposed claim against Agent Kendig “could not have been and was not

discovered in the exercise of reasonable diligence” until after the amendment

deadline had passed.

      “The decision whether to grant leave to amend is committed to the sound

discretion of the trial court,” and we review a district court’s denial of a motion for

leave to amend for abuse of discretion. Shipner v. E. Air Lines, Inc., 

868 F.2d 401

,

406–07 (11th Cir. 1989); see also Oravec v. Sunny Isles Luxury Ventures, L.C.,

527 F.3d 1218

, 1231 (11th Cir. 2008). “A district court has not abused its

discretion when the court has ‘a range of choices’ and the court’s choice ‘does not

constitute a clear error of judgment.’” Vanderberg v. Donaldson, 

259 F.3d 1321

,

1326 (11th Cir. 2001) (quotation omitted).

      After the time for amendment as a matter of course has expired, a plaintiff

may only amend her complaint with “the opposing party’s written consent or the

court’s leave.” Fed. R. Civ. P. 15(a)(2). Although “[t]he court should freely give

leave when justice so requires,”

id., it may deny

leave on “numerous grounds”

such as “undue delay, undue prejudice to the defendants, and futility of the


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         USCA11 Case: 20-11460      Date Filed: 05/05/2021    Page: 23 of 24



amendment.” Abramson v. Gonzalez, 

949 F.2d 1567

, 1581 (11th Cir. 1992).

Further, because Norris filed his motion after the scheduling order’s deadline for

amendments, he must show good cause why the district court should have

modified its scheduling order to grant him leave to amend his complaint. See Fed.

R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the

judge’s consent.”); Sosa v. Airprint Sys., Inc., 

133 F.3d 1417

, 1419 (11th Cir.

1998) (per curiam) (“If we considered only Rule 15(a) without regard to Rule

16(b), we would render scheduling orders meaningless and effectively would read

Rule 16(b) and its good cause requirement out of the Federal Rules of Civil

Procedure.”).

      The district court found that Norris was “not diligent” and did not

demonstrate good cause to modify the court’s scheduling order. The district court

set August 26, 2018 as the deadline for amendments to the pleadings. On April 1,

2019, over seven months after the pleading amendments deadline had passed and

almost a year after the case was filed, Norris moved to amend his complaint to add

Agent Kendig as a defendant. Norris argues he had good cause for this delay

because he did not learn of Agent Kendig’s role in the operation until after the

amendment deadline passed. But the district court pointed out that Norris obtained

“significant information” about Kendig’s involvement earlier in the case and still

waited months to seek the amendment. For instance, more than four months before


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         USCA11 Case: 20-11460       Date Filed: 05/05/2021    Page: 24 of 24



moving to amend, Norris learned from Capt. Cody’s deposition that Agent Kendig

was the “entry team leader” to whom Capt. Cody delegated authority to “control”

the Response Team’s movement to the house. Though Norris did not depose

Agent Kendig until later, he knew of Agent Kendig’s role in the raid months

earlier. Under these circumstances, the district court did not abuse its discretion in

denying Norris’s motion.

                                 III.   Conclusion

      For these reasons, we affirm the district court’s grant of summary judgment

to Capt. Cody and its denial of Norris’s motion to amend his complaint.

      AFFIRMED.




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