ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the following:
Jacqueline Spencer ("
On the evening of May 3, 2013, Orlando Police Department ("
Once the Males returned to their car and exited the parking lot, Evancoe observed the following violations of Florida law: (1) the Males did not put on their seatbelts;
Evancoe exited the Explorer with a flashlight in his hand and a gun in his holster. (Doc. 23-2, p. 11.) He was wearing a vest that said "police" in white letters. (Id.) As Evancoe approached the passenger side of the Hyundai, Decedent reversed the Hyundai towards Evancoe, hit the Explorer, and maneuvered around Florin's vehicle to turn right onto Raleigh Street.
Immediately: (1) Evancoe exited the passenger side of the Explorer and moved toward the passenger side of the Hyundai; (2) Florin exited his vehicle; and (3) Carson fled from the Hyundai with a gun. (Id. ¶ 15; Doc. 23-2, pp. 14-15, 21; Doc. 23-3, pp. 4, 8; Doc. 27-1, pp. 16, 19.) As Florin attempted to exit his vehicle, Zambito heard the Hyundai's engine rev and saw the Hyundai move towards Florin. (Doc. 23-1, ¶ 15; see also Doc. 23-2, p. 21.) After losing sight of Florin and hearing the Hyundai engine rev again, Zambito "fired several rounds ... to prevent Florin from being killed." (Doc. 23-1, ¶¶ 17-18.) Evancoe heard the gunshots and saw Carson running from the Hyundai with a gun in his hand. (Doc. 23-2, pp. 7, 15-16.)
Evancoe then approached the driver side of the Hyundai, saw Decedent sitting in the driver seat with his left hand on the wheel and his right hand out of sight, and ordered Decedent not to move. (Id. at 7, 17-18.) Nevertheless, Decedent lowered his hands off of the steering wheel, prompting Evancoe to fire six shots toward Decedent. (Id. at 7-8, 18.) "[A]lmost immediately after," Evancoe heard another round of gunshots between Bigelow and Carson—Bigelow shot Carson once from behind. (Id. at 19; Doc. 27-1, pp. 25, 28.)
Evancoe instructed Beavers—who was in the backseat—to exit the Hyundai, and he obliged. (Doc. 23-2, p. 8.) Evancoe and other OPD officers extracted Decedent from the car and initiated chest compressions, but Decedent died on the scene. (Id. at 9.) A subsequent search of the Hyundai revealed an additional loaded gun in the glove box. (Doc. 23-4, p. 2.)
On March 5, 2015, Plaintiff filed a six-count Complaint pursuant to 42 U.S.C. § 1983 and Florida law, alleging that: (1) Defendant Officers violated Decedent's constitutional right to be free from excessive force; (2) Defendant Officers are liable for the wrongful death of Decedent; and (3) the City's policies, customs, or procedures were a cause of the Decedent's death. (Doc. 1.) On March 1, 2016, Defendants moved for summary judgment, arguing that: (1) Defendant Officers did not use excessive force and are entitled to qualified immunity; and (2) there is no evidence of a custom or policy to establish the City's liability ("
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to issues for which the movant would bear the burden of proof at trial, the "movant must affirmatively show the absence of a genuine issue of material fact, and support its motion with credible evidence demonstrating that no reasonable jury could find for the non-moving party on all of the essential elements of its case." Landolfi v. City of Melbourne, Fla., 515 F. App'x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)). As to issues for which the non-movant would bear the burden of proof at trial, the movant has two options: (1) the movant may simply point out an absence of evidence to support the non-moving party's case; or (2) the movant may provide "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." United States v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S. at 325).
"The burden then shifts to the non-moving party, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists." Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.2d at 1115-17). "A factual dispute is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The Court must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the non-movant. Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). However, "[a] court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the non-movant relies, are `implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
Defendant Officers provide minimal record evidence to justify their actions and authority in support of their position. (See Doc. 23.) Unfortunately, Plaintiff has done even less. (See Doc. 26.) Plaintiff's only evidence is in the form of unsworn deposition testimony by Carson, which paints a weak picture—at best—of the events leading up to the Decedent's death.
Counts II and III of the Complaint assert claims against Zambito and Evancoe, respectively, pursuant to § 1983 for their alleged use of excessive force. Defendant Officers move for summary judgment as to these claims on the ground that they are entitled to qualified immunity. (Doc. 23, pp. 7-17.)
Section 1983 provides aggrieved persons with a procedural mechanism to seek redress for constitutional violations that are committed while a defendant is acting under color of state law. 42 U.S.C. § 1983. Acts performed by law enforcement officers—even if illegal or unauthorized—are considered to have been performed under color of state law so long as the acts are done in the defendant's capacity as a law enforcement officer. See West v. Atkins, 487 U.S. 42, 49-50 (1988). To avoid an individual liability claim under § 1983, law enforcement officers may invoke the defense of qualified immunity, which protects "all but the plainly incompetent or one who is knowingly violating federal law." See Depalis-Lachaud v. Noel, 505 F. App'x 864, 867 (11th Cir. 2013). Qualified immunity is a question of law to be decided by the Court, and it is evaluated under an "objective-reasonableness" standard. Courson v. McMillian, 939 F.2d 1479, 1486-87 (11th Cir. 1991).
"In order to receive qualified immunity, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). Here, this element is undisputed. Therefore, the burden shifts to Plaintiff to show that qualified immunity is not appropriate. Id.; see also Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012). To do so, Plaintiff must establish that: (1) Defendant Officers violated Decedent's constitutional right; and (2) the illegality of their conduct "was clearly established" on the date of the incident—May 3, 2013. See Terrell, 668 F.3d at 1250; Pearson v. Callahan, 555 U.S. 223, 232 (2009). While the Court may address the prongs of the qualified immunity inquiry in any order, Pearson, 555 U.S. at 236, here, the Court begins and ends its analysis with the first prong, finding that Defendant Officers did not violate Decedent's constitutional rights.
In § 1983 excessive force cases such as the one before the Court today, "the question is whether the officers' actions [were] `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Carr v. Tatangelo, 338 F.3d 1259, 1267 (11th Cir. 2003) (quoting Graham v. Connor, 490 U.S. 386, 397 (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." Graham, 490 U.S. at 396. The Court should consider the facts and circumstances of each case and balance the level of force used against:
(1) the severity of the crime at issue; (2) the immediacy of the threat posed by the suspect to the safety of the officers or others; and (3) the suspect's efforts, if any, to actively resist arrest or evade arrest by flight. Id.
The United States Supreme Court has recognized that "it is constitutionally permissible for an officer to use deadly force when `the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'" Carr, 338 F.3d at 1268 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
Garner, 471 U.S. at 11-12. "A reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983." Carr, 338 F.3d at 1269.
The U.S. Court of Appeals for the Eleventh Circuit has "consistently upheld an officer's use of force and granted qualified immunity in cases where the decedent used or threatened to use his car as a weapon to endanger officers or civilians immediately preceding the officer's use of deadly force." McCullough v. Antolini, 559 F.3d 1201, 1208 (11th Cir. 2009) (examining several cases). Indeed: (1) a suspect's "aggressive use of [an] automobile during [a] chase" may create probable cause for officers to believe that the suspect "committed a felony involving the threatened infliction of serious physical harm"; and (2) the manner in which a suspect uses his automobile may "give reasonable policemen probable cause to believe that [the automobile] ha[s] become a deadly weapon." See Pace v. Capobianco, 283 F.3d 1275, 1281-82 (11th Cir. 2002).
Here, the uncontradicted evidence reveals that Decedent evaded the First Stop (see Doc. 23-1, ¶¶ 11-12; Doc. 23-2, pp. 6, 13; Doc. 23-3, pp. 4, 7-8, 16; Doc. 27-1, pp. 11, 14) and used the Hyundai to hit the Explorer and threaten injury to Evancoe and Florin during the First and Second Stops (see Doc. 23-1, ¶ 11, 15-16; Doc. 23-2, pp. 6, 13, 21; Doc. 23-3, pp. 4, 7).
Moreover, the law does not require that Defendant Officers wait to use deadly force. See Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ("Even if we accept that the threat posed by [the suspect] to [the officer] was not immediate in that the cruiser was not moving toward [the officer] when shots were fired, 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."). Nonetheless, neither Evancoe nor Zambito fired at Decedent until they believed that physical harm or death was imminent. (See Doc. 23-1, ¶¶ 16-18, 21; Doc. 23-2, p. 18.) Such facts further support the Court's conclusion that Defendant Officers were justified in their use of deadly force. See Carr, 338 F.3d at 1269 (considering that the officer "did not fire his gun until he saw [the suspect] point what he believed to be a gun" towards another officer in determining that the officer's use of deadly force was justified).
The Court finds that Evancoe's use of deadly force was further justified by the fact that, right after he saw Carson flee from the Hyundai with a gun in his hand (see Doc. 23-2, pp. 7, Doc. 27-1, pp. 16, 19, 23, 25), Decedent disregarded his orders to remain still in the Hyundai (see Doc. 23-2, pp. 7-8, 17-18). See McCullough, 559 F.3d at 1208 (considering the suspect's failure to abide by or respond to the officer's commands); Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (holding that "the escalation into deadly force was justified by [the suspect's] refusal to comply with the officers' commands").
Although in hindsight Defendant Officers may have taken a different course of action, the Court is bound to conclude that their conduct during this quickly evolving and rapidly escalating situation involving perceived threats of serious physical harm was not objectively unreasonable.
The Court now turns to Defendant's Motion as it relates to Count I—Plaintiffs § 1983 claim against the City. Municipal liability under § 1983 requires proof of an official policy or custom that led to the claimed injury, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978), which Plaintiff failed to identify or establish here (see Doc. 26). Regardless, in light of the Court's finding that Defendant Officers did not violate Decedent's constitutional rights, Count I must fail. See City of L.A. v. Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point."); see also City of Canton v. Harris, 489 U.S. 378, 385 (1989) (suggesting that a city cannot be liable under § 1983 absent a constitutional violation). As such, the Court finds that the Motion is due to be granted as to Count I.
Counts IV, V, and VI of the Complaint assert Florida wrongful death claims against the Defendants, alleging that Defendant Officers were negligent in their use of force. The Defendants move for summary judgment as to these claims on the ground that Defendant Officers were entitled to use deadly force pursuant to Florida Statutes §§ 776.012 and 776.05. (Doc. 23, pp. 20-23.)
To begin, "[t]here is no cause of action for the negligent use of force . . . . [I]t is inapposite to allege the negligent commission of an intentional tort, such as the use of excessive force." Southerland v. Carey, No. 3:11-cv-1193-J-37MCR, 2013 WL 1912716, at *6 (M.D. Fla. May 9, 2013) (quoting Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1294 (11th Cir. 2009)). Consequently, Counts IV, V, and VI fail as a matter of law.
Further, Defendant Officers' use of force was justified pursuant to Florida Statute § 768.012(2), which provides that "[a] person is justified in using . . . deadly force if he . . . reasonably believes that using . . . such force is necessary to prevent imminent death or great bodily harm to himself . . . or another or to prevent the imminent commission of a forcible felony." Defendant Officers' reasonable belief that Decedent posed a threat of imminent death or great bodily harm to the officers involved is supported by the fact that Decedent: (1) used the Hyundai to hit the Explorer and, in the process, threatened injury to Evancoe; and (2) revved the engine in attempt to flee the Second Stop, threatening injury to Florin. (Doc. 23-1, ¶ 11, 15, 17-18; Doc. 23-2, pp. 6, 13, 21; Doc. 23-3, pp. 4, 7-8; Doc. 27-1, p. 12.) As discussed at length above, even viewed in the light most favorable to Plaintiff, the evidence reveals no genuine dispute of material fact as to whether Defendant Officers' use of deadly force was objectively reasonable; as such, Defendant Officers are immune from the wrongful death claims.
Accordingly, it is hereby
In any event, it is undisputed that, by the time Decedent turned onto Raleigh Street, the Males knew that there was a police car with its lights on behind them and that Evancoe had exited the Explorer. (See id. at 9-13.)
Defendants now argue that Carson's unsworn deposition testimony cannot alone defeat a motion for summary judgment. (Doc. 28, pp. 2-3.) The Court does not countenance this "gotcha" tactic. As counsel who noticed the deposition (see Doc. 33-1) and who reinitiated the deposition upon Carson's arrival, Mr. Moore had a professional duty to advise Plaintiff's counsel that Carson had not been sworn. Moreover, Mr. Moore conducted the direct examination of Carson and had an opportunity to cross-examine him during the deposition. (See Doc. 27-1.) As such, the Court considers Carson's unsworn testimony.
