CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE.
THIS CAUSE is before the Court on the Motion for Summary Judgment (Doc. 174) filed by Defendant Town of Indialantic ("the Town"). Plaintiff filed a Response (Doc. 231), to which the Town filed a Reply (Doc. 237). This cause is also before the Court on Defendant Diomedis Canela's Motion for Summary Judgment (Doc. 183), to which Plaintiff filed a Response (Doc. 233), and Defendant Canela filed a Reply (Doc. 239), as well as Defendant James Haman's Motion for Summary Judgment (Doc. 194), to which Plaintiff filed a Response (Doc. 234), and Defendant Haman filed a Reply (Doc. 241). Additionally, before the Court is Defendant Sheriff Wayne Ivey's Motion for Summary Judgment (Doc. 185). Plaintiff filed a Response (Doc. 235), and Defendant Ivey filed a Reply (Doc. 240). For the foregoing reasons the Town's Motion for Summary Judgment, Defendant Canela's Motion for Summary Judgment, Defendant Haman's Motion for Summary Judgment, and Defendant Ivey's Motion for Summary Judgment will be granted.
Plaintiff, Randall Greer, brings this action as the personal representative of his brother, Christopher Greer,
According to Plaintiff, Christopher was severely depressed. (Id. at 96:13-23). Christopher was also paranoid, had auditory hallucinations, and was a vulnerable adult who heard voices, feared for his life, and frequently believed people were breaking into his home. (Id. at 27:3-21, 60:7-61:6; Holstine Dep. Pt. 2, Doc. 173-19, at 195:8-17). The Indialantic Police Department received numerous calls to the Greer Residence, many of which were initiated by Christopher, claiming that he heard things at night near his house. (Morris
About a month before January 13, 2013, Plaintiff visited the Indialantic Police Department and met with Police Chief Troy Morris. (Doc. 173-22 at 76:18-77:1). Morris was aware that Christopher had mental health issues. (Id. 98:11-21). Plaintiff spoke with Morris and another officer, Sergeant Casey, at the police department about his brother's mental health. Plaintiff informed Morris and Casey that he was concerned about the medications that Christopher was taking. (Id. at 81:9-11). Casey suggested that Plaintiff attempt to see Christopher's doctors in person. (Id. at 82:19-22). Plaintiff also inquired about having Christopher Baker Acted. (Id. at 82:22-25, 83:10-17). Morris explained the Baker Act and its limitations to Plaintiff. (Id. at 83:15-17, 83:22-84:6). More specifically, Morris told Plaintiff that "[the Indialantic Police Department] will not Baker Act your brother" and that he needed to go to the court if he wanted Christopher to be mentally evaluated. (Doc. 173-14 at 236:22-237:1; see also Doc. 173-22 at 83:1-9 (indicating that Casey suggested that Plaintiff could seek help in getting Christopher Baker Acted through the court system)). Morris informed Plaintiff that Christopher could not be Baker Acted by the police unless he was a threat, (Doc. 173-14 at 232:11-14), and advised Plaintiff to call the police if Christopher did anything that warranted immediate attention, such as behaving violently, (Doc. 173-22 at 84:15-20).
On January 13, 2013, while Plaintiff worked on cleaning out the garage, Christopher remained inside the home, smoking cigarettes, watching TV, and making phone calls. (Doc. 173-13 at 51:21-24). Christopher was agitated because he was unable to get the pain medications he needed. (Id. at 51:20-21; see also id. 51:3-16). He had been without his pain medication for several days, and it was causing him to be distressed. (Id. at 51:14-16). When Plaintiff was finished cleaning for the day and as Plaintiff was getting ready to leave the house, while standing outside near the front door to the house, Plaintiff reprimanded Christopher for smoking in the house and for not helping Plaintiff clean. (Id. at 56:3-9, 57:9-18, 58:18-59:1). Christopher responded by stating that he was overwhelmed. (Id. at 57:19-58:8). Christopher grew upset and pulled a knife out of the sheath on his belt and started waving it around. (Id. at 59:5-9, 60:2-6; Christine Greer Dep., Doc. 173-11, at 131:25-132:7). Plaintiff warned Christopher that this behavior could cause Plaintiff to call the police and have Christopher Baker Acted (Doc. 173-13 at 59:10-17, 65:7-9), and Christopher responded "don't go there." (Id. at 59:18-19). He continued to wave the knife in the air while hobbling towards Plaintiff. (Id. at 61:15-17, 65:2-4). Plaintiff walked backwards towards the mailbox, and eventually Christopher put the knife away. (Id. at 65:20-22, 66:10-11, 61:20). After sheathing the knife, Christopher walked up to Christine, (id. at 61:20-21), and while talking to her, Plaintiff removed
Officer Scott Holstine from the Indialantic Police Department was dispatched to the Greer Residence in response to Plaintiff's 911 phone call, (Holstine Dep. Pt. 1, Doc. 173-18, at 46:24-47:2), and was the first to arrive on the scene, (id. at 53:4-6). Holstine was generally aware that Christopher suffered from physical and mental ailments. (Id. at 64:22-65:11). He had previously visited the Greer Residence in response to calls made to the police on a number of occasions and also knew that other law enforcement departments and officers had responded to calls at the Greer Residence. (See id. at 33:16-23, 65:13-66:14). Based on Holstine's prior experiences at the Greer residence, he had come to believe that that Christopher was paranoid. (Id. at 91:18-24; Holstine Dep. Pt. 2, Doc. 173-19, at 158:10-159:13, 195:13-17; see also Doc. 173-18 at 92:1-6). Additionally, Holstine was aware that Christopher was living alone at the Greer esidence on January 13, 2013. (Doc. 173-19 at 195:22-25).
Upon arriving on the scene, Holstine spoke with Plaintiff who reported that Christopher had come at him with a knife and choked his wife. (Doc. 173-18 at 54:5-7). Holstine looked at Christine's neck and verified that there were red marks consistent with being choked. (Id. at 54:7-10). Plaintiff further informed Holstine that Christopher was in the home and needed a medical evaluation. (Doc. 173-13 at 70:24-71:1; see id. 69:11-14). Specifically, he asked that Christopher be evaluated for a Baker Act. (Doc. 173-19 at 120:3-4; see also Doc. 173-13 at 70:19-22 (testifying that Plaintiff told Holstine that they could get Christopher Baker Acted since Christopher had shown a knife)). Holstine asked if there were any weapons in the home, and Plaintiff responded that there were knives and a disassembled cross-bow. (Doc. 173-13 at 72:13-16; Doc. 173-19 at 126:13-17).
Holstine saw Christopher standing inside the front door behind a mesh screen door, approached, and asked Christopher to come out of the house, but Christopher closed the door, saying "don't even think about it." (Doc. 173-13 at 83:1-4, 84:14-20; Doc. 173-18 at 54:13-18, 63:5-14; Doc. 173-19 at 129:6-8). Thereafter, Holstine requested assistance from the Brevard County Sheriff's Office so that he could maintain a perimeter around the home. (Doc. 173-19 at 114:18-21, 124:2-5, 124:14). Holstine also requested that Plaintiff and Christine leave the scene, and they promptly complied. (Doc. 173-18 at 54:20-24; Doc. 173-19 at 218:19-20).
In response to Holstine's request for back-up, Haman arrived on the scene. (Haman
While Haman was en route to the Greer Residence, he had requested an officer to report to the scene with a shield. (Id. at 44:24-45:7). Canela reported to the Greer Residence with a ballistic shield. (Canela Dep., Doc. 173-8, at 139:17-20, 157:22-23; see id. at 109:1-14). When he arrived, Haman was using the public address system in Holstine's vehicle and requesting Christopher to exit the home. (Id. at 153:24-154:10). Christopher did not respond. (See id. at 154:25-155:1). Canela was not briefed on all the details of the case. (Id. at 158:12-15). Rather, upon his arrival Holstine asked if Canela remembered the house, (Doc. 173-19 at 138:18-20), and Canela responded that he did, (id. at 138:21). Shortly after Canela's arrival, Haman asked Canela to grab his shield, (Doc. 173-8 at 157:24), and Haman and Canela approached the front door of the Greer Residence, (Doc. 173-19 at 140:15-18, 140:23-24). Haman and Canela knocked on the door, asked Christopher to come out, and announced that they were with the Sheriff's Office, but Christopher did not respond. (Doc. 173-8 at 169:8-22; Doc. 173-19 at 141:1-10). The garage door was open, and Haman and Canela subsequently entered the garage, planning to try to make contact with Christopher through the interior door of the garage that led into the home. (Doc. 173-8 at 180:20-22). Canela led the way to the door, providing cover with the shield, and Haman was behind him. (Id. at 185:4-11). Both Officers had their guns out. (Id. at 185:8-9). Holstine stayed further behind Haman and Canela to provide cover. (Doc. 173-19 at 139:25-140:8). Haman and Canela made an announcement once they reached the interior door, (Doc. 173-8 at 185:13-21), and then were able to open the door without resistance, (id. at 187:1-188:3).
While standing at the threshold of the door and "cutting the pie"
Haman kicked the door numerous times, but the door would not open. (Doc. 194-1 ¶ 9; see also Doc. 173-15 at 171:18-21). As a result, Haman and Canela believed Christopher was leaning up against the door to keep it shut. (Doc. 173-15 at 172:23-173:7; Doc. 194-1 ¶ 9). However, eventually Canela realized that the opposing force had let off the door, and he announced this to Haman and Holstine. (Doc. 173-9 at 221:22-222:3; Doc. 173-19 at 148:12-13). Haman kicked the door, and this time, it flew open. (Doc. 173-19 at 148:14-19; see also FDLE Holstine Interview, Doc. 232-2, at 12). At this point, Canela was standing on the left side of the door and in front of Haman. (Doc. 173-9 at 227:17, 229:2-9). Holding his shield in the upright position, (Haman Dep. Pt. 2, Doc. 173-16, at 192:23-25), Canela, again, stepped into the threshold and "cut the pie" to the left to get a visual of the inside of the house. (Doc. 173-9 at 228:10-20, 230:7-8). At the same time, Holstine turned around to face away from the interior door in the garage and out towards the entrance of the garage while moving towards the entrance. (Doc. 173-19 at 149:10-18). While cutting the pie, Canela observed Christopher, to the left of the doorway and only a couple of feet from the doorway, with a knife in his right hand above his head.
As for Holstine, upon hearing Canela shout "knife," Holstine turned to re-engage the interior door of the garage. (Doc. 173-19 at 151:9-10). As he was turning, he heard shots fired from Haman and Canela's guns. (Id. at 151:9-11). Holstine observed Christopher from the chest up for a split second but did not see his arm raised or a knife in his hand. (Id. at 151:12-16).
After ceasing fire, Haman and Canela entered the house, where Christopher Greer was laying down in a supine position. (Doc. 173-16 at 205:16-20). Haman grabbed the knife from the sheath on Christopher's side and put it on a table nearby. (Id. at 211:6-7). He also requested
In addition to the knife in the sheath on Christopher's side, a knife was found in the folds of a coat near Christopher's left leg, which was broken and covered in blood. (Doc. 183-1 at 8; Doc. 173-5 at 134). Additionally, the interior door displayed what appeared to be a marking from a knife.
Having complied with Holstine's request, Plaintiff had left the scene and did not see Haman, Canela, and Holstine make their approach towards the home or any of the events that unfolded thereafter. (Doc. 173-13 at 73:3-12, 109:9-12). Plaintiff heard the gunshots as he was walking back to the Greer Residence to check on the Officers progress. (Id. at 74:11-16). Because law enforcement were surrounding the perimeter of the home, Plaintiff could not walk down the street to the home. (Id. at 74:17-23). Nevertheless, he was able to make it to the corner of Shannon Avenue, where Morris informed him that Christopher was dead. (Id. at 74:24-75:5).
Based on these circumstances, Plaintiff and Christine brought numerous claims against thirteen defendants. At this stage of the litigation, Christine is no longer a Plaintiff, (see July 18, 2016 Order, Doc. 160, at 4-5), and the only remaining Defendants are the Town of Indialantic, Corporal James Haman, Deputy Diomedis Canela, and Sheriff Wayne Ivey. As noted, each remaining Defendant has moved for summary judgment. Each Defendant will be addressed in turn.
Summary judgment is appropriate when the moving party demonstrates "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). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it may "affect the outcome of the suit under the governing law." Id. "The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1313-14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by showing "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
However, once the moving party has discharged its burden, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (quotation omitted). The nonmoving party may not rely solely
The Court will first address the Town's Motion for Summary Judgment.
Section 768.28(5), Florida Statutes, "waived sovereign immunity for the State, its agencies, and its subdivisions in tort actions, rendering the State responsible `in the same manner and to the same extent as a private individual under like circumstances.'" Wallace, 3 So.3d at 1046 (quoting Fla. Stat. § 768.28(5)). "This effectively means that the identical existing duties for private persons apply to governmental entities." Trianon Park Condo. Ass'n, 468 So.2d at 917. Accordingly, "there can be no governmental liability unless a common law or statutory duty of care exist[s] that [is] applicable to an individual under similar circumstances." Henderson v. Bowden, 737 So.2d 532, 535 (Fla. 1999). Finding that a duty of care exists under the circumstances "is a minimal threshold legal requirement for opening the courthouse doors." Wallace, 3 So.3d at 1046 (quotation omitted).
"When addressing the issue of governmental liability under Florida law, [courts] have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes." Id. at 1044 (emphasis and footnote omitted); see also Layton v. Fla. Dep't of Highway Safety & Motor Vehicles, 676 So.2d 1038, 1040 (Fla. 1st
With this in mind, the Court will first determine whether the Town owed Christopher a duty of care. The Florida Supreme Court has stated that there are "generally four recognized bases for imposing a duty of care: (1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case." Wallace, 3 So.3d at 1047. Furthermore, "[t]o better clarify the concept of governmental tort liability," the Florida Supreme Court has placed governmental functions and activities into four categories: "(I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens." Trianon Park Condo. Ass'n, 468 So.2d at 919. These categories serves as a "rough guide as to whether the governmental entity owes the plaintiff a duty of care." Wallace, 3 So.3d at 1047 (quotation omitted).
Generally speaking, "there is no governmental tort liability for the action or inaction of governmental officials or employees in carrying out the discretionary governmental functions described in categories I and II because there has never been a common law duty of care with respect to these legislative, executive, and police power functions." Trianon Park Condo. Ass'n, 468 So.2d at 921. Rather, for category I and II activities, there is a duty owed to the public at large. Wallace, 3 So.3d at 1047. This concept is known as the public-duty doctrine. See id. at 1045. "Central to the public-duty doctrine is the principle consistently applied by the courts that government liability may not be established unless there is a common law or statutory duty of care owed by the government to the individual rather than to the general public." Manfre v. Shinkle, 184 So.3d 641, 645 (Fla. 5th DCA 2016) (emphasis added). "On the other hand, there may be substantial governmental liability under categories III and IV. This result follows because there is a common law duty of care regarding how property is maintained and operated and how professional and general services are performed." Trianon Park Condo. Ass'n, 468 So.2d at 921.
The parties dispute how Holstine's activity should be categorized. Plaintiff contends that Officer Holstine's was negligent while performing a safety check—a
Plaintiff alleges that Holstine negligently communicated with other law enforcement officers which resulted in Christopher's death. But Holstine's purported negligence arises out of factual circumstances that demonstrate that Holstine was performing more than a mere safety check. Holstine reported to the Greer Residence in response to a 911 phone call where Plaintiff reported that Christopher had engaged in criminally violent activity by threatening him with a knife and then grabbing and threatening his wife. Plaintiff informed the 911 dispatcher that he "needed an officer immediately." Upon his arrival, Holstine confirmed that Christine had red marks on her neck that were consistent with being choked. Holstine promptly called for assistance from the Brevard County Sheriff's office so that he could establish a perimeter around the home. When Haman arrived, Holstine informed him that the circumstances involved an "assault with a knife" and domestic violence, that Christopher was "a signal 20," meaning that he suffered from mental illness, with a "history of suicide" and "a lot of health issues." Although Plaintiff asked that Christopher be evaluated for a Baker Act, and Holstine indicated that Christopher's mental issues would be handled, this does not change the fact that Holstine was engaged in the enforcement of law and protection of the public safety. Even assuming Holstine was solely focused on Baker Acting Christopher, rather than effectuating an arrest, the Baker Act is a law, one purpose of which is to protect the public safety. See Williams v. State, 852 So.2d 433, 434-35 (Fla. 5th DCA 2003) ("[T]he Baker Act provides a procedure for the short-term commitment of persons who are found to be mentally ill, and who, because of the illness, present a threat of substantial harm to their own well-being, or present a danger that the patient will inflict serious bodily harm on himself or herself or on others."), approved, 889 So.2d 804 (Fla. 2004). See generally Fla. Stat. § 394.451 et seq. The factual circumstances here are clearly distinguishable from the facts in Wallace, where the court found that the police were engaged in a safety check. 3 So.3d at 1049. Because Holstine was acting to enforce the law and protect the public safety, he did not owe Christopher an individualized duty of care.
As for Morris, Plaintiff alleges that he was negligent in failing to communicate with other law enforcement officers or record sufficient information regarding Christopher's mental condition. Neither party addresses which of the Trianon categories Morris' conduct falls under. Nevertheless, the Court finds that Morris was also engaged in category II activity. By speaking with Plaintiff about the Baker Act and how Plaintiff could have his brother Baker Acted, Morris was at least indirectly involved with law enforcement.
No Florida case or statute has been cited which imposes on Morris and Holstine the duty to maintain accurate records or communicate in a "reasonable, safe, prudent, and non-negligent manner," (Doc. 117 at 76), as Plaintiff contends. See Layton, 676 So.2d at 1040 (finding that the state did not owe a duty to maintain accurate records and noting that no Florida case or statute had been cited which imposed such a duty). Moreover, were this Court to conclude that Morris and Holstine had a duty to record and communicate certain information, it could open the door to an exorbitant amount of litigation. See id. This is a considerable concern given that "[t]he potential multiplicity of suits from the judicial establishment of a municipal duty to private citizens was a factor in Trianon weighing against the establishment of such a duty." Id.
But even where category II activity is involved, and thus no general duty of care exists, "the plaintiff must be given an opportunity to plead facts alleging that the governmental actor owed the alleged tort victim a `special duty of care.'" Wallace, 3 So.3d at 1047-48 (emphasis omitted). "A special tort duty . . . arise[s] when law enforcement officers become directly involved in circumstances which place people within a `zone of risk' by": (1) "creating or permitting dangers to exist," (2) "by taking persons into police custody," (3) "detaining them, or" (4) "otherwise subjecting them to danger." Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 935 (Fla. 2004). Despite being given multiple opportunities to amend his Complaint, Plaintiff's Third Amended Complaint does not plead any of the necessary facts to demonstrate that Morris and Holstine placed Christopher in a zone of risk. As a result, Plaintiff's argument that Morris and Holstine owed Christopher a special duty under the zone of risk analysis, which appears for the first time in Plaintiff's Response to the Town's Motion for Summary Judgment, is improperly before this Court. See In re Andrx Corp., 296 F.Supp.2d 1356, 1367 (S.D. Fla. 2003) (refusing to "entertain [the p]laintiffs' new theory raised for the first time in response to [the d]efendants' motion for summary judgment as it [was] not properly
Even if Plaintiff's argument were properly before the Court, it has no merit. "Where police officers . . . have not arrived on the scene or assumed any degree of control over the situation, the `zone of risk' analysis has no application." Pollock, 882 So.2d at 936. Morris did not arrive at the Greer Residence until after Christopher had been shot. (Doc. 173-22 at 64:5-65:14). Nor do the facts demonstrate that he assumed any control over the situation.
As for Holstine, he did not take Christopher into custody or detain him. Thus, under the zone of risk analysis, Holstine only owed Christopher a special duty if he created or permitted dangers to exist or otherwise subjected Christopher to danger. "It is not enough that a risk merely exists or that it is foreseeable. Instead, the defendant's conduct must create the risk or control the situation before liability may be imposed." Jordan v. Nienhuis, 203 So.3d 974, 978 (Fla. 5th DCA 2016). In his Response, Plaintiff suggests that Holstine created the dangerous situation by failing to communicate with Haman, Canela, and the other law enforcement officers about Christopher's mental condition. However, Holstine briefed Haman on the relevant facts, including that the incident involved a signal 20, which Haman understood to mean that Christopher might be mentally ill. Holstine further relayed to Haman that Christopher had "a lot of health issues." Shortly after arriving on the scene and obtaining this information from Holstine, Haman took charge, demonstrating that Holstine did not create the risk or control the situation as Plaintiff alleges. Plaintiff also suggests that Holstine created the risk by "fail[ing] to communicate the goal of the mission" with his fellow law enforcement officers. (Doc. 231 at 13). The Court rejects this argument, as the record evidence does not demonstrate that there was a particular agreed-upon goal or pre-established objective that Holstine was working towards when he responded to Plaintiff's 911 call. Plaintiff further argues that Holstine created the risk by bringing an assault rifle to the scene.
Yet another exception exists and establishes that a law enforcement officer may owe a duty of care to an individual tort victim. This exception requires the law enforcement officer and the tort victim to have a special relationship. "Such a special relationship . . . is created when a law enforcement officer promises or agrees to take some specific action at the individual's request." Brown v. City of Delray Beach, 652 So.2d 1150, 1153 (Fla. 4th DCA 1995). The following elements demonstrate the existence of a special relationship: "1) an express promise or assurance of assistance; 2) justifiable reliance on the promise or assurance of assistance; and, 3) harm suffered because of the reliance upon the express promise or assurance of assistance."
As for Morris, the record evidence is devoid of any facts to demonstrate that he made an express promise or assurance to any of the Greers. In fact, Plaintiff testified that Morris affirmatively told him that the Indialantic Police Department would not Baker Act Christopher and that he needed to go to the court if he wanted Christopher to be mentally evaluated. Morris informed Plaintiff that Christopher could not be Baker Acted by the police unless he was a threat and advised Plaintiff to call the police if Christopher did anything that warranted immediate attention, such as any violent behavior. None of these comments constitute an express promise or assurance that the police would Baker Act Christopher if they received a phone call. Thus, even viewing the evidence in the light most favorable to Plaintiff, the Court concludes that there was no special relationship to give rise to a duty owed by Morris.
Plaintiff argues that Holstine made a similar promise to Plaintiff and Christine
Furthermore, the Court rejects Plaintiff's suggestion that Morris and Holstine had a duty via the undertaker's doctrine. That doctrine only applies where traditional principles of tort law impose a common law duty of care—i.e., category III and IV activities. Cf. Wallace, 3 So.3d at 1049. As discussed above, Morris and Holstine were engaged in category II activities, and no common law duty of care applies. Having determined that the Town did not owe a duty, the Court declines to address the parties arguments as to sovereign immunity and concludes that the Town, as a matter of law, is not liable for the alleged negligence of Morris and Holstine. Thus, summary judgment will be granted on Count VIII.
Haman and Canela are named individually and in their official capacities. They seek summary judgment on several of Plaintiffs claims, including Counts III and IV, which Plaintiff brings pursuant to 42 U.S.C. § 1983, alleging that Haman and Canela used excessive force in violation of the Fourth Amendment.
Construing the facts in favor of Plaintiff, neither Haman nor Canela violated Christopher's Fourth Amendment Right to be free from excessive force.
Perez, 809 F.3d at 1218-19 (quoting Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013). According to the Supreme Court, the latter set of deadly-force factors, which are derived from Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), are "simply an application of the Fourth Amendment's `reasonableness' test." Scott v. Harris, 550 U.S. 372, 382, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Indeed, "Garner did not establish a magical on/off switch" for the reasonableness determination. Id. "Although these factors are useful, [courts] cannot apply them mechanically"; they must, instead, "slosh [their] way through the factbound morass of reasonableness." Morton, 707 F.3d at 1281 (citation and quotation omitted).
Here, the inquiry begins with determining the relevant facts for purposes of summary judgment. See Scott, 550 U.S. at 378, 127 S.Ct. 1769 ("The first step in assessing the constitutionality of [the defendant's] actions is to determine the relevant facts."). Having already set forth the relevant facts above, the Court need only address one pivotal point: whether Christopher was holding a knife at the time of the shooting. Canela testified that after Haman kicked the interior garage door open, Canela went to the threshold of the door and "cut the pie." (Doc. 173-9 at 228:10-12). As he was cutting the pie, he saw Christopher with a knife in his right hand. (Id. at 228:14-15, 230:7-12, 232:3-7, 233:6-14). Canela testified that Christopher was holding the knife above his head and in a downward motion. (Id. at 233:15-17). Christopher was within a couple feet of the door, (id. at 233:18-21), while Canela and was standing at the threshold, (id. at 230:2-6). Canela observed Christopher advancing towards him in an aggressive manner. (Id. at 234:2-5, 11-13). Canela stepped back and yelled "knife!" (Id. at 235:11-15, 237:21-22, 240:21-25; Doc. 173-16 at 186:10-15). At the same time, Haman also observed Christopher moving towards him and coming into the doorway with a big knife in his right hand and raised about shoulder high, parallel to the ground, and in a downward stabbing motion. (Doc. 173-16 at 190:12-192:21; Doc. 194-1 ¶ 10).
Plaintiff contends, however, that there is a disputed issue of material fact regarding whether Christopher was holding a knife because Holstine was able to see Christopher from the "chest up," and he did not see a knife in Christopher's hand. (Doc. 173-19 at 151:12-13, 166:16-23). But Holstine's testimony also indicates that he was facing away from the doorway when Canela shouted "knife!" (See id. at 149:11-18, 151:9-11, 153:4-10). Upon hearing Canela shout, Holstine turned to re-engage the interior door. (Id. at 153:4-10). As he was turning to re-engage the door, Holstine heard the gunshots fired by Canela and Haman. (Id. at 151:9-11, 153:13-14). Holstine also stated that he only saw Christopher from the chest up for a "split second." (Id. at 151:15-16, 154:6-9). Holstine indicated that it took a moment after he turned around for Christopher to come into view because of the clutter in the garage, as well as the fact that he only had an angled view, which Canela was partially
Moreover, when asked if there were any weapons in the house, Plaintiff informed Holstine that there were knives. The physical evidence also supports that Christopher was holding a knife in his hand just before he was shot. See Herrington, 381 F.3d at 1249 (determining that a witness's testimony was "not substantial evidence and must be disregarded" where his testimony was inexplicably inconsistent with the photographic evidence). Two knives were found near Christopher after he was shot—one in the sheath on his side
Thus, Holstine's testimony is insufficient to defeat Canela and Haman's testimony for purposes of summary judgment. See id. at 1249-50 ("A mere scintilla of evidence in support of the non-movant is insufficient to defeat a motion for summary judgment." (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505)); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) ("A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." (quotation omitted)).
As a result, there is no genuine dispute as to whether, just prior to the shooting, Canela and Haman saw Christopher holding up a knife while standing a short distance away from the Officers, aggressively advancing toward them. Additionally, both Haman and Canela testified that they felt their lives were in danger. (Doc. 173-9 at 238:11-17; Doc. 173-16 at 193:4-7). These facts justify the Officers' use of deadly force.
Analyzing the circumstances under the Graham factors supports the conclusion that both Haman and Canela acted reasonably under the circumstances. As for the first factor—the severity of the crime at issue—the undisputed facts show that Christopher threatened his brother with a knife and choked his brother's wife, causing Plaintiff to call the police and request immediate assistance. Holstine first arrived on the scene and then relayed the pertinent information to Haman upon his arrival, specifically stating that Christopher had committed an aggravated assault with a knife and domestic violence when Christopher choked his brother's wife. Aggravated assault is not only a violent crime, but a felony under Florida law, see Fla. Stat. § 784.021, and Florida's domestic violence statutes authorize the arrest of any individual who has committed domestic violence so long as there is probable cause, see Fla. Stat. § 741.29(3). Thus, the facts demonstrate that Christopher had committed violent criminal activity and threatened to inflict serious physical harm on others.
As previously discussed, the record evidence indicates that the second Graham factor—whether the suspect poses an immediate threat to the safety of the Officers or others—must be answered in the affirmative. Given that Christopher advanced towards the Officers with a knife raised in the air, until there was only a couple of feet between them, the Officers reasonably believed that Christopher posed an immediate threat to their safety.
Looking to the third Graham factor, Christopher was not evading arrest by
Thus after applying the Graham factors and analyzing this case based on the totality of the circumstances, the Court finds that the Officers acted objectively reasonable under the circumstances. See McCormick, 333 F.3d at 1246 (determining that the officer's decision to shoot a suspect was objectively reasonably where, among other things, the suspect "posed an imminent threat of violence to the officer" and "continued to ignore repeated commands").
Plaintiff relies on the fact that the Officers did not warn Christopher about their potential use of deadly force. However, a warning is only required, "if feasible." Perez, 809 F.3d at 1218-19. A warning was not feasible here. As soon as Christopher came into sight upon the door being opened a second time, Haman and Canela observed Christopher aggressively advancing toward them until he was just a couple feet away. Additionally, Haman and Canela testified that everything happened very quickly from the time the door opened the second time to the time shots were fired. (Doc. 173-9 at 233:20, 242:11, 249:14, 260:1-3; Doc. 173-16 at 196:20-22 (stating that it was about "three seconds or four seconds and it was over"), 199:22-24).
Notably, failing to give a warning does not automatically render Haman and Canela's use of force excessive. Rather, "[t]he 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." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. In fact, courts have discouraged law enforcement officers from delaying the use of force—even deadly force—where the circumstances demonstrate that such force is objectively reasonable. See Scott, 550 U.S. at 385, 127 S.Ct. 1769 ("We think the police need not have taken that chance and hoped for the best."); Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ("[T]he law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect."); see also Martinez, 648 Fed.Appx. at 894 (stating that the law enforcement officer was not "required to wait and see what might happen if he allowed Plaintiff to advance further").
Plaintiff also argues that a reasonable jury could find that Canela and Haman used excessive force because the Officers did not make any attempt to use other methods to subdue Christopher.
Plaintiff emphasizes that the Officers fired a total of thirteen shots, twelve of which went through the closed door. However, this does not demonstrate that the Officers acted unreasonably. First, the Court notes that the Officers did not open fire through a closed door, as Plaintiff contends. The record evidence indicates that each of the Officers started shooting after seeing Christopher with a knife raised, that they began shooting while the door was open, and that the door closed as they were shooting. Moreover, the Supreme Court has stated that "if police officers are justified in firing at a suspect in order to end a severe threat ..., the officers need not stop shooting until the threat has ended." Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2022, 188 L.Ed.2d 1056 (2014).
Finally, Plaintiff, citing Swofford v. Eslinger, 671 F.Supp.2d 1289 (M.D. Fla.
As the foregoing analysis has demonstrated and after considering Plaintiff's version of the facts, the Court concludes that the Officers acted objectively reasonably under the circumstances, and, therefore did not violate Christopher's Fourth Amendment right to be free from excessive force.
Even assuming a constitutional violation, Haman and Canela "are entitled to qualified immunity unless Plaintiff can show that his Fourth Amendment rights were `clearly established' at the time of the shooting. Kenning v. Carli, 648 Fed.Appx. 763, 770 (11th Cir. 2016) (citing Plumhoff, 134 S.Ct. at 2023). Under the second prong of the qualified immunity analysis, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [police officer] that his conduct was unlawful in the situation he confronted." Morris, 748 F.3d at 1322 (quoting Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012)). It follows that the right "alleged to have [been] violated must have been `clearly established' in a more particularized, and hence more relevant, sense." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The Eleventh Circuit has articulated three ways to demonstrate that a right violated was clearly established—(1) "produc[ing] a materially similar case decided by the Supreme Court, [the Eleventh Circuit], or the highest court of the relevant state"; (2) "point[ing] to a broader, clearly established principle that should control the novel facts in his situation"; or (3) "show[ing] that an [officer's] conduct was so far beyond the hazy border between excessive and acceptable force that the [officer] had to know he was violating the Constitution even without caselaw on point." Morton, 707 F.3d at 1282 (quotations omitted); cf. Perez, 809 F.3d at 1222 (requiring that the caselaw, under option one, be "indistinguishable" to the present facts). "The `salient question' is whether the state of the law at the time of the incident gave [the defendant] `fair warning' that his conduct was unlawful." Perez, 809 F.3d at 1222 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Plaintiff has not established that Haman and Canela violated Christopher's clearly established Fourth Amendment rights. As previously discussed, courts have consistently upheld an officer's use of deadly force based on the general principle that deadly force is justified where the law enforcement officer reasonably believes that the aggressor poses an
In sum, even after viewing the facts in Plaintiff's favor, the Court concludes that Haman and Canela's conduct was reasonable within the meaning of the Fourth Amendment. Furthermore, it would not have been clear to a reasonable officer faced with the same circumstances as Canela and Haman that the use of deadly force was unlawful. Therefore, Haman and Canela are entitled to qualified immunity as to Counts III and IV, respectively. Haman's Motion for Summary Judgment will be granted as to Count III, and Canela's Motion for Summary Judgment will be granted as to Count IV.
The remaining claims against Haman
Count XX alleges IIED against Haman and Canela in violation of Florida common law. "To prove [IIED] under Florida law, the plaintiff must prove: (1) deliberate or reckless infliction of mental suffering; (2) by outrageous conduct; (3) which conduct must have caused the suffering; and (4) the suffering must have been severe." Hart v. United States, 894 F.2d 1539, 1548 (11th Cir. 1990) (citing Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla. 1985)). "Florida courts use a very high standard in evaluating whether the facts alleged are sufficiently outrageous." Frias v. Demings, 823 F.Supp.2d 1279, 1288 (M.D. Fla. 2011) (quoting Metro. Life Ins. Co., 467 So.2d at 278-79). Conduct satisfies the "outrageous" requirement only if it is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 279 (Fla. 1985) (quotation omitted). "Whether the conduct is outrageous enough to rise to the level required by the tort may be decided as a question of law when the facts of a case can under no conceivable interpretation support the tort." Vance v. S. Bell. Tel. & Tel. Co., 983 F.2d 1573, 1581 (11th Cir. 1993) (quoting Williams v. City of Minneola, 575 So.2d 683, 692 (Fla. 5th DCA 1991)).
As discussed repeatedly, Defendants Haman and Canela acted objectively reasonable under the circumstances when they attempted to make contact with Christopher and shot him after he threatened
Additionally, Plaintiff has failed to produce evidence showing that Haman and Canela's conduct caused severe emotional distress. While Plaintiff argues that as a result of the incident, he "suffers from post-traumatic stress disorder, depression, anxiety, sleep loss, fatigue, and a number of other physical manifestations of severe emotional stress," (Doc. 233 at 15), he presents no evidence of the foregoing. At this stage of the litigation, Plaintiff's unsupported assertions are insufficient to demonstrate that he suffers from severe emotional distress. See Triana v. Diaz, No. 12-21309-CIV, 2014 WL 5319800, at *7 (S.D. Fla. Oct. 16, 2014) (granting summary judgment for the officer on the plaintiff's IIED claim because the plaintiff had "failed to come forward with competent evidence upon which a jury might rely to find that Plaintiff suffered severe emotional distress as a result of th[e] incident"); see also Rubio v. Lopez, 445 Fed.Appx. 170, 175 (11th Cir. 2011) (affirming the district court's grant of summary judgment on the plaintiffs IIED claim where the plaintiff's psychiatric expert's testimony did not indicate that the plaintiff suffered severe emotional distress as a result of the officer's conduct).
Because Plaintiff has failed to demonstrate that Haman and Canela's conduct was outrageous and because he has failed to show that the Officers' conduct has caused him severe emotional distress, Haman and Canela's motions for summary judgment will be granted as to Plaintiff's IIED claim. See Rubio, 445 Fed.Appx. at 175.
Counts XXII and XXIII allege "aggravated" assault and aggravated battery under state law against Defendants Haman and Canela.
Under Florida law, assault and battery are two distinct torts. "An `assault' is an intentional, unlawful offer of corporal injury to another by force, or exertion of force directed toward another under such circumstances as to create a reasonable fear of imminent peril." Sullivan v. Atl. Fed. Sav. & Loan Ass'n, 454 So.2d 52, 54 (Fla. 4th DCA 1984). "[A] battery consists of the intentional infliction of a harmful or offensive contact upon the person of another." Id. "[A] presumption of good faith attaches to an officer's use of force in making a lawful arrest and an officer is liable for damages only where the force used is clearly excessive." Sanders, 672 So.2d at 47. "[I]f such excessive force is used in an arrest, it is transformed into a battery." Hung Phan v. City of St. Petersburg, Fla., 2007 WL 1225380, at *5. "A battery claim for excessive force is analyzed by focusing upon whether the amount of force used was reasonable under the circumstances." Berry v. McGowan, No. 6:15-cv-145-ORL-41GJK, 2016 WL 4212068, at *6 (M.D. Fla. Aug. 10, 2016) (quotation omitted). "This is a `similar standard' to that employed under the Fourth Amendment." Id. (quoting Sullivan v. City of Pembroke Pines, 161 Fed.Appx. 906, 911 (11th Cir. 2006)).
As previously discussed, Haman employed an amount of force that was not clearly excessive, but rather, reasonable under the circumstances. Thus, Haman is entitled to summary judgment as to Plaintiff's claim for battery. And to the extent Plaintiff alleges that Haman "assaulted him during the same encounter, that claim is likewise foreclosed since any threat of force was reasonable." Cutino v. Untch, 79 F.Supp.3d 1305, 1315 (S.D. Fla. 2015). Consequently, Haman's Motion will be
Count XIV alleges negligent infliction of emotional distress against Canela. Plaintiff argues in his response that the Court dismissed Count XIV with prejudice, and therefore, the Court should deny Canela's motion as to Count XIV as moot. Plaintiff is incorrect. The Court dismissed Count XIV with prejudice insofar as it names Deputy Haman only. (Doc. 160 at 24). Therefore, the Court will consider Canela's arguments as to Count XIV.
Canela argues that he is entitled to summary judgment as to Plaintiff's negligent infliction of emotional distress claim based on section 768.28(9)(a) of the Florida Statutes, which shields officers of the state from liability for "any act, event, or omission of action in the scope of her or his employment or function, unless such officer... acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Because Plaintiff has failed to present any evidence demonstrating that Canela acted with the requisite intent under section 768.28(9)(a), the Court will grant Canela's motion for summary judgment as to Plaintiff's claim for negligent infliction of emotional distress.
Count VII is asserted against Defendant Wayne Ivey in his official capacity as Sheriff of Brevard County for the negligence of Defendants Haman and Canela. Plaintiff challenges Haman and Canela's negligent operation of their firearms, which Plaintiff contends resulted in Christopher's death.
It is therefore
