EMILY C. MARKS, Chief District Judge.
Now pending before the court is the Recommendation of the Magistrate Judge (doc. 74) which recommends that the defendants' motion to dismiss the second amended complaint (doc. 55) be granted in part and denied in part. On October 22, 2018, the plaintiff filed objections to the Recommendation (doc. 79) limited "solely to the court's recommendation for dismissal of [his] federal claims for excessive force under the Fourth Amendment against [defendants] Arias and Partridge (count two)." (Id. at 2). The defendants have filed a response to the plaintiff's objections. (Doc. 82). Consequently, the Court will only specifically address in this memorandum opinion the plaintiff's objections to dismissal of count two of the second amended complaint.
A district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 18 U.S.C. § 636(b)(1). The court has conducted an independent and de novo review of the Recommendation as a whole as well as those portions to which objections have been made. For the reasons that follow, the plaintiff's objections are due to be overruled and the Recommendation adopted.
In count two, the plaintiff alleges that "defendants, (sic) Partridge and Arias intentionally exercised deadly force by shooting their guns at plaintiff without any objectively reasonable justification to do so." (Doc. 51 at 27-28, ¶ 119). The Magistrate Judge concluded that defendants Arias and Partridge were entitled to qualified immunity on this count because the plaintiff had "failed to plead facts that plausibly establish that the officers committed a constitutional violation." (Doc. 74 at 57). The Magistrate Judge also concluded that even if the plaintiff had alleged sufficient facts to establish a constitutional violation, the defendants were still entitled to qualified immunity because "the plaintiff has failed to meet his burden of demonstrating that the officers violated a right that was clearly established on the date in question." (Id.)
A decision about qualified immunity is "completely separate from the merits of the action" and is decided by the Court because qualified immunity is not merely a defense to liability but rather immunity from suit Plumhoff v. Rickard, 572 U.S. 765, 771-72 (2014); Pearson v. Callahan, 555 U.S. 223, 237 (2009).
Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir. 2018). See also, Stephens v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir. 2017) ("In deciding whether an officer is entitled to summary judgment based on qualified immunity, the question of whether the force used by the officer in the course of an arrest is excessive is a "`pure question of law,'" decided by the court." Myers v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013) (quoting Scott [v. Harris], 550 U.S. [372,] [] 381 n.8, 127 S.Ct. [1769,] [] 1776 n.8)).
"The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). See also, Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). To receive qualified immunity, the defendants must first demonstrate that they were acting within the scope of their discretionary authority when the allegedly wrongful acts occurred. Cottone, 326 F.3d at 1357; Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). There is no dispute that defendants Arias and Partridge were acting within the course and scope of their discretionary authority during their encounter with the plaintiff. Thus, the burden shifts to the plaintiff to demonstrate that the defendants are not entitled to qualified immunity. Cottone, 326 F.3d at 1358.
To satisfy his burden, the plaintiff must show two things: (1) that the defendants committed a constitutional violation, and (2) that the constitutional right the defendants violated was "clearly established." Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). "Public officials are immune from suit under 42 U.S.C. § 1983 unless they have violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." City and County of San Francisco, Ca. v. Sheehan, ___ U.S. ___, ___, 135 S.Ct. 1765, 1774 (2015) (internal citations omitted).
Taylor v. Barkes, ___ U.S. ___, ___, 135 S.Ct. 2042, 2044 (2015).
"If the law is not clearly established, then the court should dismiss the case against the government official." Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).
The plaintiff first argues that the Magistrate Judge erred in finding that he had not stated a plausible constitutional claim under the Fourth Amendment when she incorrectly assumed facts that were not included in the second amended complaint. Specifically, the plaintiff complains that the Magistrate Judge made a "judicial leap into the jury's fact-finding role." (Doc. 79 at 8). The plaintiff objects to the Magistrate Judge's finding that he was a threat to the officers because he opened the door to his residence with a gun in his hand. The plaintiff further argues that in considering the facts of this case, "the court ignored the plain reality that Arias and Partridge could not "reasonably" have considered Plaintiff as a threat when he answered the door with a gun pointed at the floor."
The plaintiff misconstrues the Magistrate Judge's conclusions. The Magistrate Judge found that
(Doc. 74 at 52) (emphasis added).
Thus, the Magistrate Judge did not determine as a matter of fact or law that the plaintiff was a threat to the officers. The standard is not whether the plaintiff was a threat to the officers, but as the Magistrate Judge appropriately considered, whether a reasonable officer would have believed that the plaintiff posed a threat of serious physical harm to the officers. Shaw v. City of Selma, 884 F.3d 1093, 1099 (11th Cir. 2018). It is not the plaintiff's subjective motivation or intent imposed by hindsight, but what a reasonable officer objectively would believe in the split-second situation that guides the Court's decision.
The plaintiff argues that "it was not a reasonable decision . . . for these officers to simply start shooting a man who was doing exactly what they and any other reasonable officer would expect him to do under these circumstances." (Doc. 79 at 11). The plaintiff is correct that the standard is reasonableness, but question is whether the officers' actions were reasonable in light of the facts "knowable to [them]." White v. Pauly, 580 U.S. ___, ___ ___, 137 S.Ct. 548, 550 (2017).
Sheehan, ___ U.S. at ___, 135 S.Ct. at 1775.
Thus, in evaluating the reasonableness of the officers' actions, the court examines the facts "from the perspective "of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Stephens, 852 F.3d at 1318.
This is what the Magistrate Judge did.
(Doc. 74 at 51).
Thus, when Arias and Partridge arrived at the residence, they possessed the following information: a 911 call regarding a domestic disturbance at the residence had come in; a second 911 call in which the 911 dispatcher was informed that there were weapons in the residence; the dispatcher informed the officers that "this was a routine domestic disturbance;" the caller reported that there were weapons in the house, but there was no indication that weapons were involved in the disturbance; and it was early morning and dark when the officers arrived. (Doc. 51 at 6-10). When the plaintiff opened the door, he was armed with a gun. The plaintiff upon seeing the officers immediately retreated into the house.
Considering the information that the officers had about the situation — an earlier domestic disturbance that precipitated two 911 calls, weapons in the residence, the plaintiff opening the door with a gun, and then immediately retreating into the house — it was reasonable for Arias and Partridge to believe they could use their weapons to protect themselves. The cases are legion that "[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 v. Connor, 490 U.S. 386, 396-97 (1989). See also, Kisela v. Hughes, ___ U.S. ___, 138 S.Ct. 1148 (2018); Mobley v. Palm Beach County Sheriff Dep't, 783 F.3d 1347, 1355-56 (11th Cir. 2015); Davidson v. City of Opelika, 675 F. App'x 955, 959 (11th Cir. 2017); Wells for Chambers v. Talton, 695 F. App'x 439, 444 (11th Cir. 2017). Thus, the state of the law did not give the officers "clear warning" that their conduct was unconstitutional; rather, the law supported their actions.
The plaintiff asserts that "[i]t is, at the very least, a fact question of whether Arias or Partridge made the decision to fire at Howe because they did not like him answering the door with a gun in his hand under these circumstances (which was within his constitutional rights to do), or whether there is any reasonable basis for the court's apparent belief that Howe was retreating into his home to shoot back when they shot nine times into his home." (Doc. 79 at 15). Contrary to his assertion, the plaintiff's motivation or rationale for retreating into his home is immaterial in addressing the question of qualified immunity. The question is whether a reasonable officer in these circumstances could have believed that a potentially dangerous situation was evolving, particularly in light of the fact that the plaintiff was armed and retreating behind a closed door.
"In analyzing whether excessive force was used, courts must look at the totality of the circumstances: not just a small slice of the acts that happened at the tail of the story." Garrett v. Athens-Clarke Cty., Ga., 378 F.3d 1274, 1280 (11th Cir. 2004). And an officer need not wait until he is attacked physically before determining reasonably that he is in imminent danger of serious injury. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ("the 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.")). "Nothing in the Fourth Amendment barred [the officers] from protecting themselves, even though it meant firing multiple rounds." Sheehan, ___ U.S. at ___, 135 S.Ct. at 1775.
Id., at 1777. See also Wells for Chambers, 695 F. App'x at 445 n.2 ("The fact that [the police officer] was later found to be mistaken about [the suspect] having the gun as he ran away does not defeat qualified immunity. See Penley [v. Eslinger], 605 F.3d [843,] 854[, (11th Cir. 2010)] (finding that officer's use of deadly force was reasonable where suspect held a toy gun modified to look like a real gun).").
The plaintiff was armed and retreating when the officers opened fire. Because Arias and Partridge were faced with the split-second decision regarding the force necessary to protect themselves from an armed, retreating individual, their actions were not objectively unreasonable. "[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397.
The plaintiff has cited no binding precedent that would indicate to a reasonable officer that the actions taken by Arias and Partridge were unlawful. The qualified immunity defense "recognizes the problems that government officials like police officers face in performing their jobs in dynamic and sometimes perilous situations." Merricks, 785 F.3d at 558. Based on the facts of this case, the court concludes that defendants Arias and Partridge are entitled to qualified immunity on the plaintiff's excessive force claim because these officers had no "fair and clear warning of what the Constitution requires." Sheehan, ___ U.S. at ___, 135 S.Ct. at 1778. In other words, because existing precedent did not place the "constitutional question beyond debate," the defendants are entitled to qualified immunity. See al-Kidd, 563 U.S., at ___, 131 S.Ct. at 2085.
Finally, the plaintiff objects to the Magistrate Judge's reliance on Young v. Borders, 620 F. App'x 889 (11th Cir. 2015) because the opinion was neither binding nor precedential. (Doc. 79 at 12). The plaintiff also contends the facts of Young are far different from the facts alleged in this case. This objection merits little discussion. The Magistrate Judge acknowledged that Young was a district court decision and only discussed Young in the context of similarity. She specifically stated that Young simply bolstered her decision; she in no way asserted that Young governed. Accordingly, this objection is due to be overruled.
The plaintiff does not object to the Recommendation of the Magistrate Judge to grant the motion to dismiss on counts one, three, five, seven, eight and nine, and the Court finds that those counts are due to be dismissed. The Recommendation will therefore be adopted as related to these counts.
Accordingly, for the reasons stated herein, it is ORDERED as follows that:
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Salvato v. Miley, 790 F.3d 1286, 1293 (11th Cir. 2015).
