Filed: Jun. 11, 1998
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-8996 _ D. C. Docket No. 1:95-CV-1165-CC RALPH W. ENSLEY, Plaintiff-Counter-Defendant-Appellee, C. WESLEY ENSLEY, Plaintiff-Appellee, versus LARRY SOPER, Sergeant, Defendant, MIKE JOHNSTON, Officer, Defendant-Appellant, JAMES GILLELAND, Officer of the City of Canton, Georgia Police Department, in their official and individual capacities, Defendant, DANNY DOYLE, Counter-Claimant. _ Appeal from the United States Distric
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-8996 _ D. C. Docket No. 1:95-CV-1165-CC RALPH W. ENSLEY, Plaintiff-Counter-Defendant-Appellee, C. WESLEY ENSLEY, Plaintiff-Appellee, versus LARRY SOPER, Sergeant, Defendant, MIKE JOHNSTON, Officer, Defendant-Appellant, JAMES GILLELAND, Officer of the City of Canton, Georgia Police Department, in their official and individual capacities, Defendant, DANNY DOYLE, Counter-Claimant. _ Appeal from the United States District..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 96-8996
_______________
D. C. Docket No. 1:95-CV-1165-CC
RALPH W. ENSLEY,
Plaintiff-Counter-Defendant-Appellee,
C. WESLEY ENSLEY,
Plaintiff-Appellee,
versus
LARRY SOPER, Sergeant,
Defendant,
MIKE JOHNSTON, Officer,
Defendant-Appellant,
JAMES GILLELAND, Officer of the City of Canton, Georgia Police
Department, in their official and individual capacities,
Defendant,
DANNY DOYLE,
Counter-Claimant.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(June 11, 1998)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
BIRCH, Circuit Judge:
In this interlocutory appeal, we determine whether the
defendant police officer, Mike Johnston, is entitled to qualified
immunity regarding claims that he failed to (1) warn the plaintiffs that
they were entering a crime scene and (2) intervene when his fellow
officers used excessive force against the plaintiffs. In denying
summary judgment to Johnston, the district court stated only that a
reasonable juror could conclude from the evidence that his fellow
officers had used excessive force. Johnston argues that, even
assuming the plaintiffs’ allegations are true, he did not have a clearly
established duty to warn or assist them. We reverse.
I. BACKGROUND
For the purposes of this appeal, we view the facts in the light
most favorable to the non-moving parties, plaintiffs Ralph and
*
Honorable Stanley Marcus, U.S. District Judge of the Southern
District of Florida, sitting by designation as a member of this
panel when this appeal was argued and taken under submission. On
November 24, 1997, he took the oath of office as a United States
Circuit Judge of the Eleventh Circuit.
2
Wesley Ensley.1 See Riley v. Newton, 94 F.3d 632, 634 (11th Cir.
1996), cert. denied, __ U.S. __,
117 S. Ct. 955,
136 L. Ed. 2d 842
(1997).
On the night of May 15, 1993, two undercover officers of the
Cherokee County, Georgia police department conducted an
undercover operation against a suspected drug dealer. After luring
their suspect to the parking lot of a convenience store just outside
the city of Canton, Georgia, the two plain-clothes officers attempted
to arrest him. During the course of this arrest, the suspect’s attempt
to flee led both to a crash between his and the officers’ cars and to
the accidental and harmless discharge of one officer’s firearm. As
a result of these events, a crowd of store customers and neighbors
began to gather near the crime scene, and an additional six
Cherokee County officers, two City of Canton officers, and a Georgia
State Trooper soon arrived at the scene. Of the total of eleven
1
Like the parties, we refer to the Ensley brothers as “Ralph”
and “Wesley” for convenience and clarity.
3
officers at the parking lot following the arrest, six wore police
uniforms; five marked police cars were also present.
One of the Canton officers who came to the parking lot was
Johnston, who was in uniform. Soon after Johnston’s arrival at the
lot, firecrackers apparently went off in the vicinity of a neighboring
furniture store. After hearing these noises, Johnston returned to his
marked patrol car and drove to the furniture store’s parking area to
investigate. Unbeknownst to Johnston at that time, the furniture
store was owned by Ralph; in fact, Ralph owned both the furniture
store to the left of the convenience store and the video store to the
right of the convenience store. At the time of the drug arrest, Ralph
and his brother were in the furniture store, while Ralph’s wife was in
the video store. Apparently, both Ralph and Wesley had recently
been engaged in the consumption of alcohol. When Ralph received
a telephone call from a neighbor suggesting that a robbery was
taking place in his video store (with his wife as a presumed victim),
4
Ralph picked up an iron bar and exited the furniture store with
Wesley.
Upon his arrival at the furniture store, Johnston encountered
Ralph and Wesley and asked them whether they had heard
firecrackers. Although the substance of the Ensleys’ response is in
dispute, Ralph asserts that he told Johnston that he had heard
gunshots, that he believed a robbery was in progress at his nearby
video store, and that they needed Johnston’s assistance. Ralph and
Wesley then ran across the parking lot toward the convenience and
video stores. The Ensleys maintain that Johnston did not warn them
that there were police officers or a crime scene in the convenience
store lot, but they do not claim that Johnston gave them any
affirmative assurance that he would assist them; the Ensleys
apparently assumed that Johnston was following them to help foil
the supposed robbery.
As the Ensleys ran across the parking lot, Johnston drove his
patrol car back to the convenience store lot. At that time, the lot was
5
apparently unlit. According to Ralph, none of the officers in the lot
made any attempt to identify themselves or to warn him of any
danger as he approached the convenience store. Ralph and
Wesley, however, concede that, as they neared the crime scene,
they saw that a man had been handcuffed and was sitting by a wall
outside the convenience store. Ralph and Wesley also apparently
concede that they did not attempt to ascertain from any of the
various people present whether a robbery was in fact occurring or
their assistance was in any way required.
Upon entering the crime scene, Ralph soon became involved
in an altercation with a plain-clothes officer, Danny Doyle. Although
Doyle was wearing a badge and other police accouterments (such
as handcuffs at his waist), Ralph contends that he did not realize
that the man who was restraining him was a law enforcement officer.
When Ralph subsequently resisted Doyle’s attempt to arrest him,
several other officers at the scene, including at least one uniformed
officer, joined in handcuffing and “hog-tying” Ralph. During the
6
course of this arrest, Ralph hit Doyle with the iron bar (albeit
allegedly unintentionally), lacerating Doyle’s head and chipping his
tooth. During and shortly after this arrest, several of the officers
allegedly kicked and beat Ralph. As all of the parties agree,
Johnston did not participate in any way in Ralph’s arrest or in any
subsequent alleged abuse.
While several officers subdued Ralph, Johnston and two other
officers were busy arresting Wesley. As Wesley concedes, he
attempted to come to Ralph’s assistance when Ralph became
entangled with Doyle. When Wesley grabbed Doyle’s metal
flashlight, Deputy Diane Bagget, soon joined by another officer and
Johnston, restrained and arrested Wesley. Johnston then placed
Wesley in Johnston’s patrol car.
Although the Cherokee officers charged Ralph and Wesley with
several crimes, a jury acquitted both Ensleys of all charges
stemming from the incident. On May 5, 1995, the Ensleys then sued
several of the Cherokee County and Canton officers in their official
7
and individual capacities for, inter alia, false arrest and use of
excessive force (i.e., assault and battery), in violation of their rights
under the Fourth and Fourteenth Amendments (enforced through 42
U.S.C. § 1983).2 On May 7, 1995, the Cherokee defendants moved
for summary judgment, as did Johnston and a fellow Canton officer
on May 9, 1996. On May 31, 1996, the Ensleys dismissed two
defendants in both their official and individual capacities and
Johnston in his official capacity only.
On July 31, 1996, the district court granted in part and denied
in part the various motions for summary judgment. In its order, the
district court ruled that, even viewing the evidence in the light most
favorable to the Ensleys, the officers had probable cause to arrest
Ralph and Wesley and, therefore, the officers were entitled to
qualified immunity for the false arrest claims. The district court,
however, denied Johnston’s motion for summary judgment on
2
The Ensleys also brought their suit alternatively as a state
cause of action. The nature of and basis for the Ensleys’
alternate state law claims are unclear from the record.
8
Ensley’s excessive force claim. In explanation, the court stated only
that:
A police officer’s use of force must be examined in light of
the facts of each individual case. Popham v. Kennesaw,
820 F.2d 1570, 1576 (11th Cir. 1987). Resolving the
disputed factual issues in plaintiffs’ favor, a reasonable
person could conclude that defendants used excessive
force. Therefore, Officer Johnston is not entitled qualified
immunity on plaintiffs’ claims of excessive force.
R9-69 at 12-13. Following the court’s order, Johnston filed this
interlocutory appeal.
II. DISCUSSION
On appeal, Johnston renews his contention that he is entitled
to qualified immunity.3 The doctrine of qualified immunity “protects
government officials performing discretionary functions from civil
trials . . . and from liability if their conduct violates no clearly
established statutory or constitutional rights of which a reasonable
3
This court has jurisdiction to hear Johnston’s interlocutory
appeal because the district court’s denial of qualified immunity to
Johnston rests on a disputed issue of law or of mixed law and fact.
See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1484-85 (11th Cir.
1996).
9
person would have known.” Lassiter v. Alabama A & M Univ., 28
F.3d 1146, 1149 (11th Cir. 1994) (en banc) (internal quotation marks
omitted). Any case law that a plaintiff relies upon to show that a
government official has violated a clearly established right must pre-
date the officer’s alleged improper conduct, involve materially similar
facts, and “truly compel” the conclusion that the plaintiff had a right
under federal law. See
id. at 1150. Moreover, “[o]bjective legal
reasonableness is the touchstone”; a court must examine whether
a government officer has acted in an objectively reasonable fashion
under the circumstances, without any consideration of the
government actor’s subjective intent.
Id.
The Ensleys contend that Johnston violated two of their clearly
established rights. First, they maintain that Johnston trammeled
upon their right to be warned that they were about to enter a
dangerous crime scene. Second, they argue that Johnston violated
Ralph’s right to expect Johnston’s intervention when Ralph suffered
from police brutality in Johnston’s presence. We review the district
10
court’s denial of a defendant’s motion for summary judgment on the
basis of qualified immunity de novo. See Dohilite v. Maughon by
and through Videon, 74 F.3d 1027, 1040 (11th Cir. 1996).
A. DUTY TO WARN
The federal Constitution does not oblige any state or local
government to ensure the safety of its citizens. See, e.g., DeShaney
v. Wennebago County Dept. Soc. Serv., 489 U.S. 189, 194-203,
109
S. Ct. 998, 1002-07,
103 L. Ed. 2d 249 (1989). Moreover, a police
officer does not have any duty under federal law to warn or protect
any particular member of the public unless either (1) a “special
relationship” exists between the victim and the criminal or between
the victim and the state or (2) the victim faces a special danger not
applicable to the public at large. See, e.g., Jones v. Phyfer,
761
F.2d 642, 647 (11th Cir. 1985) (holding that police did not have duty
to warn woman that her attacker was on furlough); Wright v. City of
Ozark,
715 F.2d 1513, 1515 (11th Cir. 1983) (holding that police did
11
not have duty to divulge wave of rapes).4 In this case, the Ensleys
have not alleged that they had a special relationship with Johnston
before he purportedly failed to warn them that they were running
toward a crime scene; Johnston had not, for example, affirmatively
assured them that he would protect or assist them in their rush to the
video store.5 Nor have the Ensleys alleged that they faced a special
danger. As a matter of law, therefore, Johnston could not have
4
The Ensleys attempt to sidestep these cases by arguing that
Johnston had a duty to warn them under a provision of the City of
Canton Police Department Operations Manual stating that “Officer at
the scene contains situation by establishing perimeter security.”
R8-62 Exh. W at 18-5. Without some further regulation or case law
establishing what procedures Johnston should have followed in order
to have maintained perimeter security, however, this bare statement
in the Manual is insufficient to establish clearly any duty for
Johnston to warn the Ensleys. Cf. Lassiter, 28 F.3d at 1151-52.
Further, even if the Manual were more specific, the Ensleys cannot
base a § 1983 claim solely on an alleged violation of non-federal
law. See
Jones, 761 F.2d at 647.
5
In fact, the only case law that the Ensleys cite involving a
government officer and a duty to warn or protect is Landis v.
Rockdale County, 212 Ga. App. 700,
445 S.E.2d 264 (Ga. Ct. App.
1994) (holding that a “special relationship” is a prerequisite for
an officer to have a duty to protect under Georgia law). As we
have preciously explained, only U.S. Supreme Court, the Eleventh
Circuit Court of Appeals, or the highest court of the state from
which a case arose may “clearly establish” rights under federal law
for this circuit. See Jenkins v. Talledega City Bd. of Educ.,
115
F.3d 821, 827 n.4 (11th Cir.) (en banc), cert. denied, __ U.S. __,
118 S. Ct. 412,
139 L. Ed. 2d 315 (1997). Landis, however, is a
decision of the Georgia Court of Appeals and deals only with state
law. “[A] Section 1983 claim may not be based simply on the
allegation that governmental officials violated state law in
failing to take protective measures.”
Jones, 761 F.2d at 647
(internal quotation marks omitted).
12
violated any right of the Ensleys to a warning. Thus, Johnston is
entitled to qualified immunity and, therefore, to summary judgment
on the Ensley’s failure to warn claim brought under § 1983.6
B. DUTY TO INTERVENE
The Ensleys also argue that Johnston had a duty to intervene
when his fellow officers allegedly used excessive force against
Ralph. As Johnston concedes, it is clear that “[i]f a police officer,
whether supervisory or not, fails or refuses to intervene when a
constitutional violation such as an unprovoked beating takes place
in his presence, the officer is directly liable under Section 1983.”
Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). The Ensleys,
however, can point to no case recognizing such a duty on materially
6
Because this appeal involves only Johnston’s potential
qualified immunity from the Ensleys’ § 1983 claims, we do not
express any opinion on the viability of the Ensleys’ state law
claims for Johnston’s alleged failure to warn (or to intervene).
The district court may decide on remand whether it wishes to
exercise pendant jurisdiction over the Enselys’ remaining state law
claims against Johnston. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 349-50,
108 S. Ct. 614, 619,
98 L. Ed. 2d 720 (1988)
(holding that exercise of pendant jurisdiction is at discretion of
district court).
13
similar facts to those underlying this case. Unlike Byrd, this is not a
case in which an officer is alleged to have stood idly by while a
fellow officer mistreated a member of the public. Rather, all of the
abuse allegedly suffered by Ralph occurred while Johnston was
attempting to restrain and arrest Wesley. Without some precedent
holding that an officer has a duty to abandon his attempt to arrest
one armed attacker in order to protect another armed attacker
against whom other officers may be using excessive force, Johnston
had discretion to decide whether Wesley or the officers arresting
Ralph deserved his immediate attention. See Riley, 94 F.3d at 635
(holding that an officer who was engaged in arresting a suspect, and
who did not observe his fellow officer’s use of excessive force on a
second suspect, did not have a duty to intervene).
Further, in order for an officer to be liable for failing to stop
police brutality, the officer must be “in a position to intervene.” Id.;
see also Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir. 1994). At
oral argument, we requested that the Ensleys provide us with a
14
supplemental brief listing all of the evidence in the record that might
lead a reasonable juror to believe that Johnston had an opportunity
to observe or halt any excessive force directed at Ralph. After
thoroughly examining the Ensleys’ submission, we see no evidence
in the record that might show that Johnston observed his fellow
officers’ alleged abuse of Ralph or that he had opportunity to
intervene. As all the parties agree, Johnston and the two other
officers who together arrested Wesley observed the initial altercation
between Ralph and officer Doyle.7 Once Wesley joined the fray,
however, Johnston became actively involved in the arrest of Wesley;
Johnston therefore claims that he did not observe any use of
excessive force against Ralph. In fact, even Wesley concedes that
he did not see any abuse, see R8-62 Exh. L at 20; since Johnston
was with Wesley, Wesley’s testimony corroborates Johnston’s claim
that he was not in a position to know Ralph’s circumstances.
Against this evidence, the Ensleys offer nothing that might show that
7
The Ensleys do not dispute before this court that Doyle had
probable cause to arrest Ralph.
15
Johnston could have or did observe excessive force. Finally,
Johnston had little choice but to remain with Wesley while he and his
fellow officers brought Wesley under control and secured him in
Johnston’s vehicle. Under these circumstances, we believe that no
reasonable juror could find that Johnston was “in a position to
intervene.” Therefore, even if the district court is correct that “a
reasonable person could conclude that . . . [Johnston’s fellow
officers] used excessive force,” we see no evidence that might lead
a reasonable juror to conclude that Johnston violated any clearly
established right of Ralph to intervention. Again, Johnston is entitled
to qualified immunity and thus summary judgment on the Ensleys’
claim regarding Johnston’s alleged failure to intervene.
III. CONCLUSION
Johnston appeals the district court’s order denying him qualified
immunity. Because Johnston did not have any clearly established
duty to warn the Ensleys before they entered the crime scene, and
16
because Johnston did not have a clearly established duty to
abandon his attempt to arrest Wesley in order to assist Ralph, we
hold that the district court was in error. Therefore, we REVERSE
and REMAND the case to the district court for further proceedings
consistent with this opinion.
17
