WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the defendant's motion for summary judgment and the plaintiffs' motion for partial summary judgment. (Docs. 57, 66). The parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 58-60, 67-70, 77, 86, 92), and the motions are ripe for resolution. After careful consideration, the Court concludes that the defendant's motion is due to be granted and the plaintiffs' motion denied.
The plaintiffs' decedent ("Collar") was a student at the University of South Alabama ("the University") when, on the night of October 5-6, 2012, he was shot and killed by the defendant, a police officer employed by the University. Count One, brought pursuant to Section 1983, claims the defendant used excessive force in violation of the Fourth and Fourteenth Amendments. Count Two is a claim for wrongful death under Alabama law. The defendant is sued in both his individual capacity and his official capacity. (Doc. 1).
The defendant seeks summary judgment based on qualified immunity as to Count One and state-agent immunity as to Count Two. (Doc. 57 at 1). The plaintiffs seek partial summary judgment as to the immunity defenses and further as to liability on Count One. (Doc. 66 at 1).
Summary judgment should be granted only if "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). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden . . ., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion. . . .").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant. . . ." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11
There is no burden on the Court to identify unreferenced evidence supporting a party's position.
Because the evidence and inferences therefrom must be viewed most favorably to the nonmovant, in assessing the defendant's motion the plaintiffs' version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendant and not contrary to the plaintiffs' version.
The plaintiffs have filed two motions to strike, (Docs. 64-65), while the defendant has filed four. (Docs. 73-76).
As the Court has often noted, "the proper response to [objectionable] evidence . . . is to discount such materials, not to strike them from the record." Roy v. Correctional Medical Services, 2014 WL 5285521 at *9 n.8 (S.D. Ala. 2014).
Before encountering the defendant, Collar ingested a chemical known as "25I." The defendant offers a state toxicological analysis report confirming the presence of this substance in Collar's body. (Doc. 58-3 at 14). The defendant also offers statements from four witnesses regarding Collar's ingestion of 25I and his behavior after having done so but before he encountered the defendant. (Docs. 58-1, -4, -5, -6).
The plaintiffs challenge the witness statements as irrelevant (since the defendant did not possess this information when he encountered Collar) and as inadmissible unsworn statements. (Doc. 64 at 4-8). The defendant admits that, because the statements are unsworn, they may not be considered by the Court. (Doc. 58 at 2 n.2). The Court has recently so held. Rachel v. City of Mobile, ___ F. Supp. 3d ___, 2015 WL 3562273 at *3 (S.D. Ala. 2015).
The plaintiffs at one point object to the toxicological analysis report, (Doc. 64 at 2), but they do not in their conclusion seek its exclusion. (Id. at 9). Moreover, their only comment regarding the report is that "[i]t is not contested that Gil Collar ingested" what is now known to be 25I. (Id. at 3). Their points appear to be that the defendant did not know what Collar had ingested and that 25I was not illegal at the time. (Id. at 3-4). But the defendant makes no argument to the contrary. The simple fact that Collar ingested 25I merely provides background, explaining the probable cause of his conduct and setting the stage for what transpired.
For the reasons set forth above, the plaintiffs' motion is
The defendant has provided testimony, based on his measurement of the distance covered and the time elapsed as shown on a police video, as to the speed at which Collar was moving in the final seconds before he was shot.
The plaintiffs describe all this evidence as expert testimony and challenge it for failure to comply with Rule 26(a)(2) and the Magistrate Judge's order concerning expert witnesses. In addition, they deny the defendant is qualified as a "human factor or event reconstructionist" expert, and they claim his testimony is "materially flawed and inaccurate" for purposes of a Daubert analysis. They also assert that Chief Aull admitted he is no expert and that his opinion regarding the distance between the defendant and Collar is contradicted by other evidence. Finally, they complain that the defendant agreed Chief Aull would offer no testimony regarding the reasonableness of the shooting, that Parrish's testimony was unsolicited and exceeded the permitted scope of his deposition, and that Helton's statement was made on the scene, not as formal testimony under oath. (Doc. 65 at 2-14).
"It's commonly understood that lay witnesses may estimate size, weight, distance, speed and time even when those quantities could be measured precisely." Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013). "`The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to . . . distance. . . .'" Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 241 (6
The defendant obviously has first-hand knowledge of the route he and Collar took, and he is permitted as a layman to offer testimony as to the distance covered. To the uncertain extent the plaintiffs suggest the defendant could permissibly estimate the distance as 50 feet but could not permissibly measure the distance as 50 feet using a measuring wheel,
The police video, which contains a time counter, depicts the beginning and the end of the 50-foot traverse. From the video and counter, the defendant identified the elapsed time as approximately six seconds, a figure confirmed by the Court's review of the video. Inexplicably, the plaintiffs insist without explanation that "looking at video time stamps" is a job that can be performed only by an expert, (Doc. 65 at 7), a revelation that must come as a shock to anyone who has ever used a camcorder or camera phone with a time counter.
The defendant divided the distance traveled (50 feet) by the elapsed time (six seconds) to derive an average speed (8.33 feet per second). The plaintiffs, again without explanation, describe this calculation as "an opinion of an expert nature." (Doc. 65 at 3). The quotient of simple division cannot possibly be a matter of opinion, and the formula for speed is taught to every middle school child in the land. Both the formula and the calculation are matters of fact, not opinion.
Because the defendant's testimony regarding Collar's speed does not and need not involve any expert opinion, it is irrelevant whether he was identified or qualified as an expert. Accordingly, the plaintiffs' motion as to this evidence is
Chief Aull testified that he looked at photographs of Collar's body and noticed stippling at the entry point, which "told me that [the defendant] and Collar were two feet apart from the barrel of his gun when he pulled the trigger." (Doc. 65 at 11; Doc. 58-9 at 20-21). The defendant acknowledges that Chief Aull's conclusion of a two-foot distance from the presence of stippling represents an opinion rather than a fact, but he argues it is a lay opinion under United States v. Myers, 972 F.2d 1566 (11
In Myers, the Eleventh Circuit ruled the trial court did not abuse its discretion in allowing as lay opinion the testimony of an officer that marks he observed on the victim's back were consistent with marks that would be left by a stun gun. 972 F.2d at 1577. The Court noted that "[h]is conclusion was rationally based upon his personal perception of [the victim's] back and his nineteen years of experience on the police force." Id. The defendant assumes that Myers stands for the proposition that any police officer with any considerable length of service may offer lay opinion testimony on anything related to police work. (Doc. 78 at 13).
Rule 701 requires that a lay opinion be "rationally based on the witness's perception." This requires that Chief Aull not only have perceived the stippling on Collar's body but also that he have past experience perceiving that stippling occurs only when the firearm is within two feet of the victim. The Myers Court, utilizing a forgiving abuse-of-discretion standard of review, concluded that the witness's nineteen years on the force could plausibly indicate he had experience observing marks left by stun guns, but the Court did not hold that such service must be deemed to demonstrate such experience.
The defendant has offered no evidence that Chief Aull has ever witnessed stippling in the past, much less that he knows from observation that stippling occurs when the barrel is within two feet but not when it is outside two feet.
"The ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court. . . ." Myers, 972 F.2d at 1576-77. Given the defendant's failure of evidence providing a foundation for a proper lay opinion, the Court rejects the proffered evidence as lay opinion testimony.
Nor can the evidence be admitted as expert testimony. In accordance with Rule 26(a)(2), the defendant was required by court order to identify by May 18, 2015 any expert to be used in support of his motion for summary judgment. (Doc. 47 at 1). The defendant identified no expert, either by the deadline or at any later time.
"If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence on a motion . . ., unless the failure is substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). "The burden is on the party facing sanctions to prove that its failure to comply with Rule 26(a) was substantially justified or harmless." Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377, 1381 (11
The defendant first suggests his failure to identify Chief Aull as an expert is irrelevant because the plaintiffs elected to take his deposition. (Doc. 78 at 16). The cases on which he relies, however, state only that a party cannot complain when its questioning of a witness naturally elicits unfavorable testimony. Nothing in these cases remotely supports the proposition that the failure to identify an expert can be excused because the opponent deposed a witness later claimed to be an expert. The plaintiffs were entitled to assume that the defendant would offer opinions from Chief Aull, if at all, only as a layman. This is especially so since defense counsel expressly stated at Chief Aull's deposition that "[m]y intention is to not disclose experts or use experts in support of the summary judgment motion." (Doc. 65-1 at 10).
The defendant also says his failure is irrelevant because the plaintiff could have deposed the medical examiner about stippling but chose not to do so. (Doc. 78 at 14). This is a non sequitur deserving no response.
Because Chief Aull's testimony can be admitted, if at all, only as an expert opinion, and because the defendant's procedural failing precludes him from using an expert witness, the plaintiffs' motion as to this evidence is
The plaintiffs understand the testimony of Chief Aull and Officers Parrish and Helton as being offered for the proposition that the defendant's act of shooting Collar was objectively reasonable and thus constitutional. (Doc. 65 at 13). Were that the defendant's purpose, it may well be that only expert testimony would be acceptable. But the defendant offers the evidence, not to prove that his conduct was in fact constitutional but to show that, even if it was unconstitutional, a reasonable officer in his position could have believed it was constitutional, so as to clothe him with qualified immunity. (Doc. 78 at 20; Doc. 58 at 28). The plaintiffs in their reply brief ignore this important distinction, and the Court will not address it unilaterally on their behalf. Accordingly, the plaintiffs' motion as to this evidence is
The plaintiffs offer the affidavit of Bonnie Collar to show that Chief Aull made promises at freshmen orientation that are relevant to the "duties of care or standards" under Count Two. (Doc. 82 at 4-5). Because the Court resolves Count Two based on immunity, evidence of duties and standards of care are not relevant, and the Court thus has not considered Ms. Collar's affidavit. Accordingly, the defendant's motion is
The defendant was interviewed by representatives of the Mobile County Sheriff's Department in the hours after the shooting. The plaintiffs have submitted a transcription of that interview. The defendant objects that the transcription contains multiple errors and points out that a more perfect version exists. (Doc. 74). The plaintiffs move to substitute the better version, (Doc. 83), and the defendant does not object. (Doc. 91). Accordingly, the motion to substitute is
Dispatcher Jeffrey Loman penned a handwritten statement concerning the incident. He also gave an oral interview to Sheriff's Department representatives, which interview was reduced to a transcript. The defendant objects that both documents are unsworn and are hearsay. (Doc. 75).
"Unsworn statements do not meet the requirements of Fed. Rule Civ. Proc. 56(e) and cannot be considered by a district court in ruling on a summary judgment motion." Carr v. Tartangelo, 338 F.3d 1259, 1273 n.26 (11
At his deposition, Loman listened to the audio version of his interview and read along with the transcript. (Doc. 84 at 26-27). He confirmed the accuracy of the transcript and then stated he knew it was important to tell the truth to the investigators and that he did so to the best of his ability, as fully and completely as he could. (Id. at 27, 30-31). The plaintiffs conclude that Loman confirmed under oath that his unsworn statement was true and thereby "adopted" the statement "under penalty of perjury," satisfying the requirement of a sworn statement. (Id. at 4). They cite the advisory committee note to Rule 801(d)(1), which states that, "[i]f the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem." Thus, "if the witness admits the truth of the prior inconsistent statements then the witness in effect adopts the prior statement [sic] as his present testimony, given under oath and subject to cross-examination. The hearsay element is no longer present." United States v. Davis, 487 F.2d 112, 123 (5
As to Loman's handwritten statement, the plaintiffs assert only that it might be admissible "at trial . . . depending on how Loman testifies at that time." (Doc. 84 at 7). Perhaps so, but the question is whether the statement can be used on motion for summary judgment, not at trial. Since the statement is unsworn and the plaintiffs offer no explanation how it can be deemed sworn or the oath or affirmation requirement excused, the statement cannot be considered.
For the reasons set forth above, the defendant's motion is
The plaintiffs offer the affidavit of Melvin Tucker to show that "the conduct of [the defendant] amounted to a Constitutional violation" and that the defendant "violated USA PD policies and procedures." (Doc. 80 at 3, 13). Because the Court resolves Count One on the grounds that no constitutional right violated by the defendant (if any) was clearly established, it is irrelevant whether the defendant violated the Constitution. And because the Court concludes that any violation of the policy on which the plaintiffs rely would not strip the defendant of state-agent immunity, it is irrelevant whether the defendant violated the policy. The Court therefore has not considered the affidavit, and the defendant's motion is
On the night of October 5, 2012, University student Collar ingested 25I, a synthetic drug then legal. As the plaintiffs state, "this substance caused [Collar] to become impaired to the point that he completely disrobed and began to act irrationally" and "in a bizarre manner."
The defendant and Loman were the only persons inside the building. The defendant was in a back room, completing an arrest report. He jumped up from his chair when the pounding began and, before it had ended several seconds later, he had unholstered his Glock pistol and exited the room in a crouching position or tactical stance. The pounding shook the entire building, and the defendant believed it was the result of gunshots or explosions. Officer Parrish, who was in the side parking lot, thought the noise sounded like loud shotgun blasts.
The defendant first went to the dispatch room to check on Loman. He asked Loman, "What was that?" Loman answered that he didn't know but that it wasn't gunshots. While they were talking, Loman saw Collar and told the defendant there was a guy outside and asked if he had made the noise. For present purposes, the Court assumes Loman told the defendant the guy was sweaty and naked.
The defendant, in uniform, exited the dispatch room and issued a radio call: "Eleven, all units report to the office, there are several loud bangs that rocked the office." He then exited the front door (which swings outward), 23 seconds after Collar's first pound on the window. He exited with his firearm held in both hands, his arms extended, the gun pointing slightly down and not at anyone or anything.
Within about four seconds of the door beginning to open, the defendant observed Collar approaching him from the direction of the street, jumping up and down and extending his arms as he came within about six feet of the defendant. The defendant began backing up parallel to the front of the building, weapon trained on Collar, and ordered him to get on the ground. Collar went to one knee and then both and said, "Shoot me," then immediately got back up and continued advancing on the defendant (who continued to back up during the two to three seconds Collar was not on both feet). The defendant again yelled at Collar to get down on the ground, then did so a third time. Instead, Collar continued advancing on the defendant, closing the gap between them to about two feet by the time he reached the end of the patio along the front of the building about eight seconds later. He was walking about two miles per hour but again was jumping and swinging his arms as he did so. The defendant interpreted Collar's movements as aggressive. As he backed up, the defendant tried to unholster his pepper spray with one hand while holding his pistol in the other, but Collar began his bouncing movements and closed the gap between them, causing the defendant to abandon the effort.
As the defendant exited the patio to the unpaved area beyond, he turned 90 degrees (toward the street) and picked up his pace in an effort to re-establish some distance between himself and Collar. He made another 90-degree turn parallel to the building and continued his accelerated pace over a grassy, sloping yard with oak tree roots, moving backward while keeping his eyes and firearm toward Collar. Collar also accelerated, beginning with a long, lunging step seen on the video.
The defendant fired because, under the circumstances, he believed Collar would overtake him any second, gain control of his gun, and use the gun against the defendant. The defendant did not know when backup would arrive, he did not know if Collar had accomplices, and he did not know that what had violently shaken the police building less than a minute earlier was not weaponry.
Collar was 5' 9" and a muscular 148 pounds; the defendant is 5' 11" and 173 pounds. When he fired, the defendant realized that Collar was naked, unarmed, and impaired in some respect. At no point during the encounter did Collar touch the defendant, reach for his gun, or verbally threaten him with violence. The defendant did not purport to arrest Collar and did not tell Collar he would shoot him if he did not stop.
Collar, shot in the chest, went to the ground. After about seven seconds, he stood back up, crying out, "Shoot me again!" several times before wandering away and collapsing.
"[G]overnment officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "[T]he burden is first on the defendant to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority." Harbert International v. James, 157 F.3d 1271, 1281 (11
The lower courts have discretion whether to address first the existence of a constitutional violation or the clearly established nature of the right allegedly violated. Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012). To avoid "the often more difficult question whether the purported right exists at all," id., the Court addresses the latter issue first.
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001). "In other words, existing precedent must have placed the statutory or constitutional question beyond debate." Reichle, 132 S. Ct. at 2093 (internal quotes omitted). "The salient question . . . is whether the state of the law at the time of an incident provided fair warning to the defendants that their alleged conduct was unconstitutional." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). To attain that level, "the right allegedly violated must be established, not as a broad general proposition, . . . but in a particularized sense so that the contours of the right are clear to a reasonable official." Reichle, 132 S. Ct. at 2094. The law is clearly established if any of three situations exists.
"First, the words of the pertinent federal statute or constitutional provision in some cases will be specific enough to establish clearly the law applicable to particular conduct and circumstances to overcome qualified immunity, even in the total absence of case law." Vinyard v. Wilson, 311 F.3d 1340, 1350 (11
"Second, . . . some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts." Vinyard, 311 F.3d at 1351. "For example, if some authoritative judicial decision decides a case by determining that `X Conduct' is unconstitutional without tying that determination to a particularized set of facts, the decision on `X Conduct' can be read as having clearly established a constitutional principle: put differently, the precise facts surrounding `X Conduct' are immaterial to the violation." Id. "[I]f a broad principle in case law is to establish clearly the law applicable to a specific set of facts facing a government official, it must do so with obvious clarity to the point that every objectively reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted." Id. (internal quotes omitted). "[S]uch decisions are rare," and "broad principles of law are generally insufficient to clearly establish constitutional rights." Corey Airport Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11
"Third, [when] the Supreme Court or we, or the pertinent state supreme court has said that `Y Conduct' is unconstitutional in `Z Circumstances,'" then if "the circumstances facing a government official are not fairly distinguishable, that is, are materially similar [to those involved in the opinion], the precedent can clearly establish the applicable law." Vinyard, 311 F.3d at 1351-52.
When case law is utilized to show that the law was clearly established, the plaintiff must "point to law as interpreted by the Supreme Court [or] the Eleventh Circuit," and such case law must pre-date the challenged conduct. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11
The parties agree that the defendant's use of force is to be measured against the objective reasonableness standard of the Fourth Amendment. (Doc. 58 at 21-22: Doc. 67 at 20-21). "[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them...." Graham v. Connor, 490 U.S. 386, 398 (1989). "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced 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. at 396-97.
According to the plaintiffs, the issue is whether it was clearly established in October 2012 "that use of deadly force, without warning, against a naked, unarmed, impaired minor suspect who was committing no serious crime, was not resisting, was not placed under arrest and who threatened no harm of serious injury or death to the officer, is unreasonable and excessive." (Doc. 67 at 19). However, the evidence viewed most favorably to the plaintiffs fails to support the proposition that Collar posed no threat of death or serious injury to the defendant. Nor does the plaintiffs' statement of the issue take into account other circumstances of this case, including what the plaintiffs themselves characterize as Collar's "bizarre" and "irrational" behavior.
It is clear that Collar was a naked, unarmed, impaired minor, and it may be assumed for present purposes that he was committing no serious crime. It is also clear the defendant did not tell Collar he would shoot him if he did not halt, but that cannot be significant given that the plaintiffs themselves deem it "inexplicabl[e]" that the defendant would expect Collar to comply with his commands. (Doc. 67 at 10, 26). And while he may not technically have been resisting arrest (because the defendant was not attempting to arrest him), Collar was plainly non-compliant with repeated lawful orders to get on the ground, instead continuing his advance on the defendant.
That relentless advance, despite orders to stop, created an obvious and immediate threat to the defendant's life and safety. The defendant retreated the full length of the patio, but Collar pursued him and closed the gap to two feet, with no indication he would not come closer. The defendant accelerated his retreat after leaving the patio, but Collar then accelerated as well, closing the gap to about five feet — a distance he was covering in barely half a second. Moreover, Collar had closed to within about three feet of the defendant's firearm and was in position to grab it with a single lunge. The defendant — ignorant of when backup might arrive and moving rapidly backward over uneven terrain in the dark of night while keeping his eyes and gun on Collar (who could easily sustain and even further increase his speed, as the defendant could not) — was running out of options.
The plaintiffs argue the defendant could not reasonably have believed Collar was a threat to harm him, because his only words were, "Shoot me" and "Kill me," proving that Collar was a threat only to himself. Moreover, they say, Collar never reached for the defendant or his gun, not even when he came within two feet of the defendant at the end of the patio. (Doc. 67 at 10-11, 27-32). But the excited, energetic and muscular Collar continued to advance on the defendant (and at an increasingly brisk pace), he continued to ignore orders to get on the ground, and he continued to tell the defendant to shoot him and kill him — words that reflected an obsession with the defendant's weapon and with extreme violence. The defendant had also witnessed other manifestations of Collar's irrationality and unpredictability — in his nakedness, his pronounced and seemingly aggressive foot and arm movements, and his momentary partial compliance (when he went to his knees for an instant before rising again). Finally, the defendant was faced with a sudden, unprecedented crisis, with no time to reflect or plan a strategy, much less perform a psychological assessment to confirm whether his irrational pursuer was harmless.
As noted, the test of reasonableness does not rest on hindsight but on the perspective of a reasonable officer on the scene, in possession of the facts and circumstances that confronted the defendant. It therefore does not matter what Collar "really" would or would not have done, or whether (as the plaintiffs assert) Collar was not trying to threaten the defendant but only making himself an easy target; what matters is whether a reasonable officer could or would have understood the facts and circumstances of the situation to reflect a threat of death or serious injury.
Based on the evidence as viewed most favorably to the plaintiffs, the question becomes whether, in October 2012, it was clearly established that using deadly force against a suddenly appearing, naked, unarmed, impaired minor — who posed an immediate threat of death or serious physical injury in that he was behaving irrationally, jumping and waving his arms, advancing swiftly on a retreating officer, repeatedly telling the officer to shoot him and kill him, and ignoring repeated orders to get on the ground — without first issuing a warning the minor would have ignored, would represent constitutionally excessive force.
The plaintiffs do not suggest that the language of the Fourth Amendment itself clearly establishes that the defendant's use of force was unconstitutional. Instead, they point to four Eleventh Circuit opinions they believe support their position.
In Salvato v. Miley, 790 F.3d 1286 (11
Salvato cannot clearly establish the unconstitutionality of the defendant's use of force because it is premised on the victim being in retreat and not posing an immediate threat to the officer or others. Collar was not in retreat, was rapidly advancing on the retreating defendant, and was in striking distance; for that and other reasons previously explained, he posed an immediate threat of death or serious injury to the defendant. Salvato holds that Y conduct (using deadly force) is unconstitutional in Z circumstances (without warning on an unarmed, retreating suspect). In the words of Vinyard, the circumstances of Salvato are fairly distinguishable and thus incapable of clearly establishing that the defendant's use of force was unconstitutional.
In Gilmere v. City of Atlanta, 774 F.2d 1495 (11
Gilmere cannot clearly establish the unconstitutionality of the defendant's use of force because it is premised on the officer's fear of retaliation for his immediately preceding unconstitutional beating of the decedent. The defendant did not exert force against Collar before the shooting, much less unconstitutional force. Like Salvato, Gilmere at best establishes that using deadly force is unconstitutional in certain circumstances, which circumstances are not present here.
In Morton v. Kirkwood, 707 F.3d 1276 (11
Finally, in Mercado v. City of Orlando, 407 F.3d 1152 (11
The plaintiffs turn to a blanket criticism of the defendant's approach in the moments preceding the shooting. They say the defendant should not have left the station at all, or at least not alone, before backup arrived; that he should have assessed the situation and formulated a plan before leaving the building; that he should not have exited the building with firearm drawn; that he should have soothed Collar rather than yelling commands at him; that he should have holstered his weapon in order to de-escalate the situation, resorting to non-lethal weapons if necessary; that he should have stalled Collar until backup arrived; and that he should have "render[ed] aid and assistance" to Collar. (Doc. 67 at 3, 26-27, 31). The complaint, however, limits their federal claim to "Defendant Austin's actions in shooting and killing" Collar, which actions are identified as the ones violating Collar's Fourth Amendment rights. (Doc. 1 at 11). Because the defendant's previous actions are not made the basis of the constitutional claim, the plaintiffs cannot rely on them now to rescue that claim.
Even if it were properly before the Court, the plaintiffs have identified no Eleventh Circuit or Supreme Court authority clearly establishing that the defendant's conduct in these particulars violated the Constitution. Indeed, they have cited no authority at all. The Court, however, has recently addressed a similar issue. In Rachel, the plaintiff asserted she could base a Fourth Amendment claim on an officer's "provoking a confrontation with an emotionally disturbed felon." 2015 WL 3562273 at *9. The Court noted the absence of any binding authority clearly establishing such a proposition. On the contrary, the Court pointed to City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015), in which the Supreme Court "canvassed the case law and concluded that `the officers' failure to accommodate [the plaintiff's] illness [did not] violat[e] clearly established law.'" Rachel, 2015 WL 3562273 at *10 (quoting Sheehan, 135 S. Ct. at 1775. Even under the Ninth Circuit law at issue in Sheehan, a plaintiff "cannot establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided." 135 S. Ct. at 1777 (internal quotes omitted).
In summary, it was not clearly established in October 2012 that the defendant's use of force violated Collar's constitutional rights. Accordingly, the defendant is entitled to qualified immunity as to the plaintiffs' constitutional claim, and his motion for summary judgment as to Count One is due to be granted on this basis. The plaintiffs' motion for partial summary judgment as to qualified immunity is thus due to be denied, and their motion for partial summary judgment as to liability under Count One is due to be denied as moot (since the defendant prevails regardless of whether his conduct violated Collar's constitutional rights).
Ala. Code § 6-5-338(a). "[W]hether a qualified police officer is due § 6-5-338(a) immunity is now judged by the restatement of State-agent immunity articulated by Ex parte Cranman, 792 So.2d 392 (Ala. 2000)." Blackwood v. City of Hanceville, 936 So.2d 495, 504 (Ala. 2006) (internal quotes omitted).
"A State agent asserting State-agent immunity bears the burden of demonstrating that the plaintiff's claims arise from a function that would entitle the State agent to immunity." Ex parte Kennedy, 992 So.2d 1276, 1282 (Ala. 2008) (internal quotes omitted). "Should the State agent make such a showing, the burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-agent immunity recognized in Cranman is applicable." Id. The plaintiffs concede that the defendant has met his burden. (Doc. 67 at 35). The burden thus shifts to the plaintiffs to demonstrate an exception to the defendant's presumptive immunity.
The two Cranman exceptions are as follows:
792 So. 2d at 405. In somewhat confusing and disjointed fashion, the plaintiffs in their brief appear to invoke several of these possibilities. First, they argue the defendant violated the Fourth Amendment. Second, they argue the defendant violated Alabama law, specifically, Section 13A-3-23. Third, they argue the defendant violated an Alabama rule or regulation, specifically, the University use of force policy ("the Policy"). Fourth, they assert indiscriminately that the defendant "acted willfully, maliciously, fraudulently, in bad faith, beyond his or her [sic] authority, or under a mistaken interpretation of the law." (Doc. 67 at 36-40).
The threshold difficulty with the plaintiffs' approach is that their complaint expressly limits the defendant's loss of immunity to his having "acted beyond his authority as a sworn police officer by failing to discharge his duties in a manner consistent and in compliance with the policies, procedures, and rules of the USA Police Department with respect to the use of non-lethal and deadly force, all of which he violated." (Doc. 1 at 14). No other basis for stripping the defendant of his immunity is alleged, and none is properly before the Court. But the plaintiffs would fare no better even had they not by their pleading disavowed any ground for denying state-agent immunity other than the defendant having acted beyond his authority.
The plaintiffs assume that a violation of the Constitution of itself strips a defendant of state-agent immunity. (Doc. 67 at 36). That, however, is not what Cranman says. Instead, Cranman establishes that "a State agent shall not be immune from civil liability" when the Constitution "require[s] otherwise." 792 So. 2d at 405 (emphasis omitted). The Constitution obviously does not "require" the stripping of immunity whenever a defendant has violated it, else there would be no such thing as qualified (or absolute) immunity. Qualified immunity does not violate the Constitution but is consistent with it. E.g., Nixon v. Fitzgerald, 457 U.S. 731, 747 (1982) ("Our decisions concerning the immunity of government officials from civil damages liability have been guided by the Constitution, federal statutes, and history."). Because, as discussed in Part II, the defendant is entitled to qualified immunity, the Constitution does not require that he be denied state-agent immunity.
Similarly, the plaintiffs assume that a violation of any Alabama law of itself strips a defendant of state-agent immunity. (Doc. 67 at 37). Again, that is not what Cranman provides. Instead, a state agent will not be immune when the "laws . . . of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise. . . ." 792 So. 2d at 405 (emphasis added). Section 13A-3-23 is a state law, but it was not enacted for the purpose of regulating the activities of a governmental agency; it is simply Alabama's generic self-defense statute, applicable to all "person[s]," not governmental agencies.
This leaves for consideration only the preserved issue regarding the Policy.
As noted, the complaint asserts that the Policy should be analyzed under the "acting beyond authority" exception to state-agent immunity. "One of the ways in which a plaintiff can show that a State agent acted beyond his or her authority is by proffering evidence that the State agent failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist." Kennedy, 992 So. 2d at 1282-83 (internal quotes omitted); accord Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003).
As relevant here, the Policy provides that "[i]t is the policy of the University of South Alabama Police Department to use deadly force only when . . . [t]he officer reasonably believes that his life is in jeopardy and that deadly force is immediately necessary to preserve the officer's life, or prevent serious bodily injury." (Doc. 68-2 at 3). The Policy identifies the "Elements Necessary in the Use of Deadly Force" as intent, opportunity and ability. (Id.). That is, "the person intends to seriously injure or kill the officer or another person," he "is in range to seriously injure or kill the officer or another person," and he "has the means to seriously injure or kill the officer or another person." (Id.). "ALL THREE MUST BE PRESENT IN A LEGAL DEADLY FORCE SITUATION." (Id.).
The plaintiffs focus on the word, "MUST," which they interpret as making the presence of these three elements "mandatory" before deadly force is employed. (Doc. 67 at 39). But they overlook that the decision whether to use deadly force is left to whether the officer "reasonably believes" that his life is in jeopardy and "reasonably believes" deadly force is immediately necessary. Thus, the three elements need not literally be present, as long as the officer reasonably believes they are present.
The formation of a reasonable belief necessarily encompasses the exercise of discretion in evaluating and weighing — often, as here, in a mere instant — the many and infinitely varied circumstances that may be presented in any given situation. While it requires a reasonable belief in the danger of and need for deadly force, and while it identifies three things an officer must reasonably believe before he reasonably concludes his life is in jeopardy and that deadly force is immediately necessary to save it, the Policy does nothing to eliminate the officer's discretion in identifying and assessing the circumstances that will weigh into those calculations. It does not, for example, forbid an officer to use deadly force against someone apparently on drugs or who is presently unarmed.
Thus, while the Policy to some degree cabins an officer's discretion to use deadly force, it does eliminate his discretion in determining whether he reasonably believes such force is justified. The Policy therefore does not constitute the kind of "detailed rule or regulation" the violation of which could strip the defendant of state-agent immunity.
In summary, the defendant is entitled to state-agent immunity. Accordingly, his motion for summary judgment as to Count Two is due to be granted, and the plaintiffs' motion for partial summary judgment as to state-agent immunity is due to be denied.
For the reasons set forth above, the defendant's motion for summary judgment is
DONE and ORDERED.
The plaintiffs also complain vaguely that the defendant's testimony as to distance (a predicate to the calculation of speed) is "in direct contravention" of what the video shows. (Doc. 65 at 10). This is a curious position, given that the plaintiffs in the same paragraph correctly note that the video does not actually depict most of the defendant's path. (Id.). The video patently is not in tension with the defendant's testimony as to a 50-foot traverse.
