AMY TOTENBERG, District Judge.
This action arises from injuries Plaintiffs' teenage son, D.M.C., sustained when Defendant Fulton County Police Officer Corporal Benjamin W. Griggs ("Officer Griggs" or "Defendant Griggs") shot him during an attempted arrest.
On the evening of July 28, 2011, D.M.C.
Fulton County Police Officer Michael Guin was conducting a "business check" of
Officer Guin approached the driver's side door of the Honda Accord "in a felony stop manner" with his gun drawn in a low, ready position. (Fulton Cnty. SMF ¶¶ 14-15; Pls.' Resp. SMF ¶¶ 14-15; Guin Dep. 63:4-10, 67:5-7, 74:13-75:25; Guin Dep. Ex. 1, at 2.) Officer Guin then issued a verbal command to the occupants to keep their hands visible. (Fulton Cnty. SMF ¶ 16; Pls.' Resp. SMF ¶ 16; Guin Dep. 77:12-19; Guin Dep. Ex. 1, at 2.) When Officer Guin opened the driver's side door, Darden took his foot off the brake to exit the vehicle and it began to roll backwards toward Guin's patrol car. (Fulton Cnty. SMF ¶ 18; Pls.' Resp. SMF ¶ 18; Guin Dep. 80:23-81:11; Guin Dep. Ex. 1, at 2.) To stop the vehicle, Officer Guin reached in behind Darden and pulled the emergency brake located in between the front driver's seat and passenger seat. (Fulton Cnty. SMF ¶ 19; Pls.' Resp. SMF ¶ 19; Guin Dep. 81:11-17; Guin Dep. Ex. 1, at 2.) During this commotion, D.M.C., who was in the front passenger seat, took the opportunity to exit the vehicle and flee the scene on foot, running in the direction of an adjacent Motel 6. (Fulton Cnty. SMF ¶ 20; Pls.' Resp. SMF ¶ 20; Guin Dep. 81:18-25.) Darden made no attempt to pursue D.M.C. and instead focused his efforts on detaining Darden. (Pls.' Add'l SMF ¶ 4; Fulton Cnty.'s Resp. to Pls.' Add'l SMF ¶ 4; Guin Dep. 83:15-84:17.)
Officer Guin holstered his gun, pulled Darden out of the vehicle, and placed one handcuff on Darden's right wrist. (Fulton Cnty. SMF ¶ 21; Pls.' Resp. SMF ¶ 21; Guin Dep. 82:1-13, 88:20-89:3; Guin Dep. Ex. 1, at 2.) Darden refused to comply with Officer Guin's request that he place his left hand behind his back and actively resisted Officer Guin's attempt to place the handcuff on his left wrist. (Guin Dep. 82:11-83:14, 84:17-86:3, 86:20-88:17; Guin Dep. Ex. 1, at 2-3.) Officer Guin keyed up his shoulder microphone to request that dispatch order responding units to step up their response. (Guin Dep. 82:21-83:14.) During the struggle, Darden was able to turn his body toward Guin and a "push-and-shove match" ensued. (Guin Dep. 84:20-24; Guin Dep. Ex. 1, at 3.)
In order to regain control, Officer Guin drew his ASP expandable baton and struck Darden once in the upper right forearm and once on the lower calf region. (Guin Dep. 84:24-86:25; Guin Dep. Ex. 1, at 3.) Officer Guin was unable to deliver strong blows with the baton because of his close proximity to Darden and the vehicle, and Darden broke free of Officer's Guin's grasp. (Guin Dep. 85:7-87:22; Guin Dep. Ex. 1, at 3.) Darden lunged toward Officer Guin, briefly reached for the baton, and then swung at Officer Guin with his right arm and the handcuff brushed Officer Guin across the face. (Guin Dep. 86:25-90:7; Guin Dep. Ex. 1, at 3.) At that point, Officer Guin drew his gun and Darden took off running in the direction of the Motel 6. (Guin Dep. 88:16-90:25; Guin Dep. Ex. 1, at 3.) Guin gave a brief chase after Darden, radioed dispatch to provide the location of the subject and a clothing description, and decided to wait for the
Several officers who heard Officer Guin's radio call for backup during the struggle with Darden began arriving on the scene, including Defendant Griggs and Detective Marty McHugh. (Guin Dep. 113:12-22; McHugh Dep. 11:4-12:25; Griggs Dep. 208:10-210:25, 212:2-213:18.) At approximately 12:40 a.m., Officer Corey Henry of the K-9 unit of the Fulton County Sheriffs Department also responded with a search dog, "Marco." (Guin Dep. Ex. 1, at 3; Henry Dep. 9:4-13:9, 17:14-19:16, 45:8-10.) Officer Guin provided a description of the suspect and informed the officers what had happened, including that the driver of the stolen vehicle had assaulted him before fleeing the scene on foot.
The officers followed the K-9 "Marco" into the woodline as he tracked the scent of the suspect through a fence separating the Chevron and the Motel 6. (Griggs Dep. 218:11-219:4; Griggs Dep. Ex. 2, at 3; McHugh Dep. 18:10-16.) Defendant Griggs followed Officer Henry and the K-9 to the left toward some abandoned houses or structures behind the motel, and Detective McHugh fanned out in the opposite direction. (McHugh Dep. 20:12-24:20; Griggs Dep. 218:11-220:20.) The search area behind the Motel 6 was thickly wooded and dark requiring the officers to use flashlights and night vision units for visibility. (Griggs Dep. 124:8-24, 134:7-135:12, 136:2-4, 216:13-24; Griggs Dep. Ex. 2, at 3; Henry Dep. 9:20-10:5, 20:18-21:1, 23:1-24, 45:1-46:8; McHugh Dep. 35:1-19, 52:5-18.) Shortly after crossing the fence line, Detective McHugh and Defendant Griggs heard the dog begin to bark and Officer Henry yell commands to someone to "get down" and "let me see your hands."
Defendant Griggs rushed over toward Officer Henry and the K-9, and as he came around the tree he also observed a black male — now known to be D.M.C. — step out from behind a tree and start to slowly go down on one knee with his hands out in front of him. (Griggs Dep. 221:14-25; Griggs Dep. Ex. 2, at 4.) Because it was dark, Defendant Griggs illuminated the suspect with the tactical light on his gun and began issuing verbal commands to "get on the ground." (Griggs Dep. 124:8-25, 221:20-25.) At that time, he could only see the suspect's left hand but not his right hand. (Griggs Dep. 132:22-133:2, 221:22-23.) Defendant Griggs instructed Officer Henry that he was going to "go hands on"
According to Defendant Griggs, because the suspect "was not getting on the ground," had only "gone to one knee," and was acting "like he was unsure of what he was going to do," Defendant Griggs — in one continuous motion — moved in and push-kicked
Defendant Griggs was trained as an officer to index the weapon, i.e., meaning that an officer does not put his finger on the trigger or inside the trigger housing/guard of the gun unless the officer intends to shoot. (Griggs Dep. 115:21-23, 121:3-16, 206:25-207:6.) In terms of whether he violated any training protocols on the night of the incident, Griggs testified that "obviously [his] finger wasn't indexed" as his training required, because his finger must have been on the trigger when the gun discharged.
Griggs further testified that his actions in having his gun drawn during the search and in "taking [D.M.C] down" were not unreasonable under the circumstances because he had been informed that the suspect he was looking for had assaulted another police officer before fleeing the scene and that D.M.C. was not fully and promptly complying with their commands to get down on the ground. (Griggs Dep. 86:8-13, 207:19-208:4, 216:25-217:7.) He testified, however, that it was not a "deadly-force situation," there was no reason to shoot D.M.C., and that he did not intend to shoot him. (Griggs Dep. 133:24-134:6, 207:4-208:5.) Defendant Griggs further testified that D.M.C. was not immediately complying with the officers' numerous commands to get on the ground, but that he was not actively resisting arrest. (Griggs Dep. 262:21-263:15.)
Following the incident, Defendant Griggs was placed on paid administrative leave for a period of time and was temporarily restricted from participating in SWAT call-outs. (Griggs Dep. 18:118.) Defendant Griggs went before the Fulton County Response to Resistance Review Board as a result of the accidental discharge of his gun. (Griggs Dep. 102:14-103:19.) The Review Board recommended that Defendant Griggs receive additional firearm training. (Griggs Dep. 104:13-19.) Defendant Griggs received additional training in September 2011 on the use of force in low lighting situations, preventing unintentional/accidental discharges, and the use of flashlights and tactical gun-mounted lights. (Griggs Dep. 104:23-116:25, 119:20-121:7, 121:24-127:9, 128:18-131:20; Nable Dep. 35:3-14, 61:20-63:1, 96:10-22.) Prior to this incident, Defendant Griggs had not received specific
The Fulton County Police Department requires all officers to complete a minimum of eleven (11) weeks of Georgia Peace Officer's Standard and Training Council ("P.O.S.T.") mandate training and to receive P.O.S.T. certification. (Fulton Cnty. SMF ¶ 48; Pls.' Resp. SMF ¶ 48; Stiles 2nd Aff. ¶ 5.) Fulton County Police Officers receive mandated training on peace officer liability, firearms, and use of force, which includes lessons as to restraint and how to use the appropriate level of force when conducting an arrest. (Fulton Cnty. SMF ¶ 49; Pls.' Resp. SMF ¶ 49; Stiles 2nd Aff. ¶ 6.) The Fulton County Police Department also requires all officers to complete at least forty (40) hours of in-service training annually, twice the number of hours required to maintain P.O.S.T. certification, and conducts Roll-Call Training at various precincts, which provides a regular method for updating the skills, knowledge and abilities of sworn personnel between formal training sessions. (Fulton Cnty. SMF ¶¶ 50-51; Pls.' Resp. SMF ¶¶ 50-51; Stiles 2nd Aff. ¶¶ 7-8.) The Fulton County Police Department conducts training audits throughout the year to track officer training to determine whether additional training is required. (Fulton Cnty. SMF ¶¶ 53-54; Pls.' Resp. SMF ¶¶ 53-54; Stiles 2nd Aff. ¶ 9.) In addition to training officers to index their weapon, the Fulton County Police Department trains its officers to avoid going "hands-on" with arrestees/detainees while their firearms are drawn. (Fulton Cnty. SMF ¶¶ 58-59; Stiles 1st Aff. ¶¶ 4-5.) Officers are trained to holster their weapons when they lay hands on a suspect to make an arrest. (Fulton Cnty. SMF ¶ 60; Stiles 1st Aff. ¶ 5.)
The Court must grant summary judgment if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A factual issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual issue is material if resolving the factual issue might change the suit's outcome under the governing law. Id. The motion should be granted only if no rational fact finder could return a verdict in favor of the non-moving party. Id. at 249, 106 S.Ct. 2505. Still, as Judge Murphy noted, "[s]ummary judgment is a lethal weapon, and courts must be mindful of its aims and targets and beware of overkill in its use." Patterson v. Fuller, 654 F.Supp. 418, 420 (N.D.Ga.1987) (citing Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir.1967)).
When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent
Plaintiffs' Complaint, as amended, asserts the following claims: (1) a constitutional claim for unlawful use of excessive and deadly force in violation of the Fourth Amendment against Defendant Griggs; (2) a constitutional claim for defective customs and policies and failure to train against Fulton County pursuant to Monell v. Dep't of Soc. Servs. of NY, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and (3) state law claims for negligence and battery against Defendant Griggs. (See Compl., Doc. 1; 1st Am. Compl., Doc. 47; 2nd Am. Compl., Doc. 66.)
Defendant Griggs seeks summary judgment on Plaintiffs' constitutional claim on the grounds that (1) the shooting of D.M.C. was unintentional and therefore cannot serve as the basis of a Fourth Amendment violation, and (2) he is entitled to qualified immunity because (a) there was arguable probable cause to pursue D.M.C. with his gun drawn, and (b) his actions and non-deadly use of force were reasonable under the circumstances. In addition, Defendant Griggs seeks summary judgment on Plaintiffs' state law claims based on official immunity because there is no evidence that he acted with malice in accidentally shooting D.M.C.
Plaintiffs also seek summary judgment against Defendant Griggs asserting that (1) they are entitled to judgment as a matter of law on the Fourth Amendment claim because Defendant Griggs admits he intentionally used force that was not justified under the circumstances, and (2) they are entitled to judgment as a matter of law on their state law negligence claim because Defendant Griggs admits that he placed his finger on the trigger of his gun when he had no discretion to deviate from an absolute ministerial duty not to do so.
Finally, Fulton County seeks summary judgment on Plaintiff's Monell claims because (1) Plaintiffs failed to identify any relevant policy or custom of Fulton County that caused D.M.C.'s injury, and (2) Plaintiffs failed to demonstrate that Fulton County was on notice of a need for additional training to prevent similar accidental shootings or was aware of a pattern or practice of similar violations.
The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the right to be free from the use of excessive force in the
The Supreme Court has cautioned 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, 490 U.S. at 396-97, 109 S.Ct. 1865. Thus, "[i]n making an excessive force inquiry, [courts] are not to view the matter as judges from the comfort and safety of [their] chambers," rather the courts must view "the situation through the eyes of the officer on the scene who is hampered by incomplete information and
The Supreme Court and the Eleventh Circuit have recognized that "the right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted); Lee, 284 F.3d at 1197; McCullough, 559 F.3d at 1206. "Indeed, the typical arrest involves some force and injury, and the use of force is an expected, necessary part of a law enforcement officer[`]s task of subduing and securing individuals suspected of committing crimes." Lee, 284 F.3d at 1198 (citations and quotations omitted); Rodriguez, 280 F.3d at 1351; see also Nolin v. Isbell, 207 F.3d 1253, 1257-58 (11th Cir.2000).
Lee, 284 F.3d at 1197-98 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Thus, "the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by [1] the severity of the crime, [2] the danger to the officer, and [3] the risk of flight." Id.
Obviously, "using deadly force in a situation that clearly would not justify its use is unreasonable under the Fourth Amendment." Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir.2005). Thus, the Eleventh Circuit has distilled from the Supreme Court's decision in Tennessee v. Garner three key factors concerning the reasonableness of the use of deadly force. Terrell v. Smith, 668 F.3d 1244, 1251 (11th Cir.2012) (citing Garner, 471 U.S. at 11-12, 105 S.Ct. 1694 and Vaughan v. Cox, 343 F.3d 1323, 1329-30 (11th Cir.2003)). Under Garner, an officer is justified in using deadly force to stop a fleeing felony suspect when the officer:
Vaughan, 343 F.3d at 1329-30 (quoting Garner, 471 U.S. at 11-12, 105 S.Ct. 1694); Terrell, 668 F.3d at 1251. Although this list of factors may be relevant in assessing the reasonableness of using deadly force, the Supreme Court has cautioned that "Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute
The Eleventh Circuit has not decided whether or in what circumstances the purely accidental discharge of a firearm implicates the Fourth Amendment. However, a handful of federal courts
Although the Eleventh Circuit has not addressed the precise issue presented by the facts of this case, in Vaughan v. Cox,
The relevant facts in Vaughan are as follows: The Coweta County Sheriff's Department received a report of a stolen truck, including a description of the suspected thief, traveling along Interstate 85 south of Atlanta. Id. at 1325-26. Two deputies were dispatched to search for the stolen truck. Id. at 1326. After spotting a truck matching the description, the deputies hatched a plan to stop the vehicle and arrest the suspect. Id. While tracking the truck, one of the deputies made efforts to determine whether it was indeed the stolen vehicle. Id. He observed two men in the truck's cab and the plaintiff, who was riding in the passenger seat, matched the description of the suspect. Id. The deputy unsuccessfully attempted a "rolling roadblock" in an attempt to stop the truck, causing a collision between the deputy's cruiser and the truck. The driver of the truck did not pull over, but instead accelerated. The deputy repositioned his cruiser, unholstered his weapon, rolled down the passenger side window, and readied himself in case the truck's driver made aggressive moves in his direction. Id. After he pulled alongside the truck and turned on his rooftop lights, the driver accelerated in an attempt to flee. Id. at 1327. The deputy then fired three rounds into the truck without warning, hitting the plaintiff, puncturing his spine, and paralyzing him. Id. The deputy's plan had been to disable either the truck or the driver so that he could force the truck off the road. Id. However, a high-speed chase ensued, the deputy made several more attempts stop the vehicle, and ultimately the chase ended after the truck's driver lost control, jack-knifed and collided with a cement median. Id.
The district court concluded that the plaintiff, Vaughan, was not subjected to a "seizure" within the meaning of the Fourth Amendment, reasoning that the defendant intended to fire his shots at the driver of the truck and the truck itself, but did not intend to fire at Vaughan. Id. at 1327, 1328. In assessing the plaintiff's excessive force claim, the Eleventh Circuit in Vaughan looked first at whether there was in fact a seizure within the meaning of the Fourth Amendment under the Supreme Court's Brower test — that is whether the plaintiff was subjected to the "intentional acquisition of physical control" by a government actor. Id. at 1328 (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). Vaughan analyzed the claim under both Garner and Brower, stating:
Id. The officer argued that because he did not intend to shoot the plaintiff, the plaintiff did not suffer a Fourth Amendment seizure. Id. The Eleventh Circuit disagreed,
Id. at 1329 (emphasis added). Having found that the plaintiff was subjected to a seizure, the Vaughan Court then analyzed the claim under Garner's three-part reasonable/deadly force test and found that under the plaintiff's version of the facts, a "reasonable jury could find that [the officer] acted unreasonably in firing at the pickup truck."
Aside from the Eleventh Circuit's decision in Vaughan, this Court has found only two district courts in this Circuit addressing Fourth Amendment liability for accidental shootings occurring during the course of an arrest. However, both cases were decided before the Supreme Court's holding in Graham
In Matthews v. City of Atlanta, a court in this District held that a police officer's nonvolitional shooting of a suspect does not constitute a seizure within the meaning of the Fourth Amendment. 699 F.Supp. at 1556. Matthews involves facts similar to the case at bar. The defendant police officer was having coffee in a restaurant when he was approached by an individual who informed him that a stolen vehicle, occupied by two men, was parked outside the restaurant. Id. at 1553. The officer exited the restaurant and approached the vehicle with his gun drawn. Id. While pointing the gun at or near the suspect's
Id. at 1556 (noting that "[i]n fact, the decedent had already been seized prior to the shooting incident; i.e., when the officer drew his gun and ordered plaintiff's decedent and his companion to exit the truck"). The Matthews Court distinguished its holding from other cases involving nonvolitional shootings where courts inexplicably "focused on whether the officer acted reasonably in drawing his weapon in the first instance," despite the plaintiffs having sought "recovery for the firing of the gun — not the drawing of it." Id. at 1557 (citing Patterson v. Fuller, 654 F.Supp. 418 (N.D.Ga.1987) and Leber v. Smith, 773 F.2d 101 (6th Cir.1985)) (noting that "the logical extension of this position is that if the officer acted reasonably in pointing the gun, then its subsequent discharge was reasonable without evidence of the need for the actual use of deadly force"). Matthews recognized that both acts — the drawing and firing of a weapon — constitute seizures and, under the proper facts, both could be actionable under the Fourth Amendment. Id.
Contrary to the opinion in Matthews, another court in this District held that a victim of an accidental police shooting may be entitled to redress under Section 1983 even though his Fourth Amendment rights were not intentionally violated. See Patterson v. Fuller, 654 F.Supp. 418, 427 (N.D.Ga.1987) (rejecting defendant-officer's contention that negligence does not suffice to prevail in a Section 1983 action as not entirely correct, in light of the Eleventh Circuit's Gilmere
Courts in other Circuits have also viewed accidental police shootings in opposing ways. The Second Circuit Court of Appeals, in Dodd v. City of Norwich, declared that the Fourth Amendment only applies to shootings designed for "the purpose of seizing" the suspect, not accidents that happen post-seizure.
Id. at 7-8, 105 S.Ct. 1694.
On the other hand, the Sixth Circuit in Pleasant v. Zamieski, viewed an accidental shooting as separate from other potential police conduct that may constitute an actionable seizure as that term is used in the Fourth Amendment. 895 F.2d 272, 276-77 (6th Cir.1990). The parties in Pleasant disagreed over whether "intent was an implicit element of Garner's prohibition against the unreasonable use of deadly force. Id. at 275. The officer argued that Garner did not apply in the context of an allegedly negligent use of a handgun in the course of apprehending a suspected felon where the shooting death of the deceased was undisputedly accidental and not the result of the deliberate use of deadly force. Id. The Pleasant Court held that in light of Graham, "all claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard," and that Graham's objective standard applies "without regard to [the actual officer's] underlying intent or motivation." Id. at 276 (quoting Graham, 490 U.S. at 396-97, 109 S.Ct. 1865). Consequently, the Pleasant Court found that Graham requires courts to determine whether the officer's actions in the course of his attempt to arrest the plaintiff, ultimately resulting in an unintentional use of deadly force, were objectively reasonable under the circumstances. Id.; see also, e.g., Tallman v. Elizabethtown Police Dep't, 167 Fed.Appx. 459 (6th Cir.2006) (holding that in determining officer's liability under Fourth Amendment for accidentally shooting and killing suspect following high-speed police chase, court must focus
In McCoy v. City of Monticello, the Eighth Circuit Court of Appeals chose not to decide the question whether "after an intentional Fourth Amendment seizure has occurred, does an accidental shooting implicate the Fourth Amendment?" 342 F.3d 842, 847, n. 3 (8th Cir.2003). The plaintiffs in McCoy had been celebrating the New Year's Eve holiday at a club. Id. at 845. Shortly before midnight they left the club, and Mr. McCoy's truck slid sideways as it exited the parking lot due to the slippery road conditions caused by snow and sleet in the area. Id. Two officers observed Mr. McCoy's truck sliding sideways or fishtailing and pursued him in a police cruiser with the blue lights and siren in operation. Id. Mr. McCoy claims he drove for a mile without incident and was unaware of the police car behind him. Id. At some point, McCoy heard a siren and saw police lights, but assumed the police were pursuing a different vehicle and continued driving. Id. The officers eventually passed McCoy and pulled the police cruiser in front of his truck. Id. Mr. McCoy swerved to miss the police car, and his truck went off the road into a ditch. Id. He then exited his truck and raised his arms into the air after observing two officers approaching him. Id. One of the officers ran toward Mr. McCoy with his arms extended over his head and hands clasped, as if holding a handgun. Id. Before reaching Mr. McCoy, the officer slipped, his gun discharged, and a bullet struck Mr. McCoy in the chest, severely injuring him. Id.
The court in McCoy found that the officers' conduct effected a seizure, relying on the Supreme Court's holding in Brower that a Fourth Amendment "seizure" requires an intentional act by a governmental actor and that "the Fourth Amendment addresses `misuse of power,' ... not the accidental effects of otherwise lawful government conduct." Id. (quoting Brower, 489 U.S. at 596-97, 109 S.Ct. 1378). Without considering whether the shooting itself constituted a seizure, the court looked to the officer's preceding conduct to find that the defendant-officer intended to stop Mr. McCoy's vehicle and terminate his freedom of movement by a show of authority, and drew his gun with the intent to cause Mr. McCoy to submit to the officer's authority by threat of force, thereby satisfying Brower's "through means intentionally applied" standard. Id. at 847 (quoting Brower, 489 U.S. at 597, 109 S.Ct. 1378). The court further noted that "[i]n response to this display of force, McCoy ... exited his truck and raised his hands above his head, thereby establishing a seizure." Id. In analyzing whether the seizure (not the accidental shooting) was reasonable, McCoy considered the defendant — officer's conduct during the traffic stop and the "display of force" separately. Id. at 848. The court found that the officers, reasonably believing they were pursuing an actively fleeing suspect who was possibly intoxicated and driving erratically, had probable cause to stop Mr. McCoy's truck. Id.
With respect to the officer's conduct that ultimately resulted in the shooting, the McCoy Court reasoned that the "relevant inquiry [was] not whether [the officer's] act of firing his gun was `objectively reasonable,' but whether, under the totality of the circumstances, his act of drawing his gun was `objectively reasonable.'" Id. Based on the totality of the circumstances, the court's view was that an objectively reasonable officer could have believed that
This Court will follow the more persuasive second line of reasoning that an accidental firearm discharge resulting in an unintentional shooting during the course of an arrest may constitute excessive force under the Fourth Amendment if the officer's course of conduct preceding the shooting is unreasonable under the circumstances. The Supreme Court's key decisions on excessive force — and the Eleventh Circuit's Vaughan decision — inform the Court's determination. First, the Supreme Court held in Tennessee v. Garner that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." 471 U.S. at 5, 105 S.Ct. 1694. Second, the Supreme Court in Graham v. Connor stated that the Fourth Amendment provides protection against excessive force to individuals "in the course of an arrest," and that such protection lasts at least until "the point at which the arrest ends and pretrial detention begins." 490 U.S. at 395, n. 10, 109 S.Ct. 1865. Furthermore, in solidifying Garner's reasonableness standard, Graham explained that "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances, without regard to their underlying intention...." Id. at 388, 109 S.Ct. 1865.
In Scott v. Harris, the Supreme Court discussed its earlier holding in Brower, upon which a majority of the courts that come out the other way on this issue rely, stating:
550 U.S. 372, 384, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989)). As the Eleventh Circuit recognized in Vaughan, the Supreme Court has cautioned against a too finely drawn reading of the "means intentionally applied," language in Brower. Vaughan, 343 F.3d at 1328 (citing Brower, 489 U.S. at 598, 109 S.Ct. 1378.) In Brower, the
Id. at 598-99, 109 S.Ct. 1378 (emphasis added).
Having concluded that Griggs' unintentional shooting of D.M.C. during the course of the arrest does not insulate him from liability under the Fourth Amendment,
Plaintiffs argue that because D.M.C. was unarmed, compliant and non-resistant, Griggs was not justified in push-kicking D.M.C. to the ground to accomplish his arrest. According to Plaintiffs, "by definition, any level of force is excessive if there is no justification for the use of force at all." However, "Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (citing Lee, 284 F.3d at 1197) (emphasis added). The undisputed facts do not support Plaintiffs' version of the facts, even when viewed in their favor, that D.M.C. was unarmed, compliant and non-resistant at the time Officer Griggs pushed him to the ground with his foot — by employing a "push-kick." Rather, the evidence indicates that D.M.C. was what officers refer to as "passively-resistant" and had only started to go down on his knees, had only visibly put one hand above his head while appearing to conceal his other hand from the officers' view, and appeared to be considering whether to comply with the officers' commands or flee a second time.
The Court cannot find that Officer Griggs' conduct during the arrest was objectively unreasonable under the Fourth Amendment as a matter of law warranting summary judgment in Plaintiffs' favor. First, the Court cannot conclude that it was unreasonable for Defendant Griggs to have his gun drawn during the pursuit. Defendant Griggs and the other officers pursuing D.M.C. reasonably believed that he was the suspect who fled the scene after assaulting Officer Guin. The incident occurred at night, in nearly pitch-black conditions, and Defendant Griggs was using his weapon-mounted tactical light to improve visibility. Defendant Griggs had no way of knowing whether D.M.C. was armed, as one of D.M.C.'s hands was concealed from his view. See Jackson v. Sauls, 206 F.3d 1156, 1170-72 (11th Cir. 2000) ("[T]his Court has held that an officer's drawing a weapon and ordering a person stopped to lie on the ground does not necessarily constitute excessive force during an investigatory stop."); Pleasant
Second, although Officer Griggs was trained to re-holster his weapon before "going hands on," the Court cannot conclude that his failure to put the gun away before "push-kicking" D.M.C. to the ground was so unreasonable as to amount to excessive force. By necessity, Officer Griggs was using his weapon-mounted tactical light so that he could locate D.M.C. Griggs testified that he had turned off the light in order to holster the weapon before making contact with D.M.C., but was unable to see and had to turn the light back on. He therefore requested that one of the other assisting officers "put some light" on D.M.C. because he needed to holster the weapon before moving in for the arrest. However, the other officers were each more than twenty-five (25) yards away from Griggs and D.M.C. at the time. After pushing D.M.C. to the ground so that he could not run or cause immediate threat, Officer Griggs began to holster the weapon so that he could place the handcuffs on him when the gun went off. Pleasant v. Zamieski, 895 F.2d at 276-77 (finding officer's failure to re-holster weapon not to be unreasonable and that although officer should have been aware that suspect did not pose a threat, under the circumstances the officer "had little time to react" given that the plaintiff would have escaped had he taken the time to put his gun away); cf. Johnson v. City of Milwaukee, 41 F.Supp.2d 917 (finding there were genuine questions about the reasonableness of the officer's conduct in failing to holster weapon before frisking suspect who was already pinned against fence, surrendered on command, and placed his hands in the air, and where the officer had a number of more reasonable options to control the situation without escalating the level of force necessary, including waiting for back-up or ordering the plaintiff to lie down on the ground).
For the same reasons, the Court also finds that Officer Griggs' use of the "push-kick" was not excessive under the circumstances. Although D.M.C. was not actively resisting the officers' commands to "get down on the ground," he hadn't fully complied and seemed to be hesitating. Griggs testified that after locating D.M.C., the entire incident happened within a matter of seconds. Without the benefit of 20/20 hindsight, Officer Griggs reasonably believed that his actions were necessary and justified under tense and quick-moving circumstances. This Court "cannot [ ] use
Having found that Griggs' actions did not constitute an unreasonable seizure in violation of D.M.C.'s Fourth Amendment rights, the Court need not address the second prong of the qualified immunity analysis — whether the constitutional right in question was clearly established at the time of the violation. Accordingly, the Court
Defendant Griggs failed to respond in opposition to Plaintiffs' Cross-Motion for Summary Judgment on their state law negligence claim. However, Griggs contends in his own motion that he is entitled to official immunity because he acted in the scope of his discretionary authority as a police officer and no evidence has been presented that suggests he acted with malice in shooting D.M.C. In response, Plaintiffs assert that (1) the doctrine of official immunity does not protect Griggs against liability for negligence in the performance of ministerial acts such as the proper firing of his weapon pursuant to his training, and (2) a jury could reasonably find that Griggs acted with actual malice or a deliberate intent to harm. As a result of his failure to respond at all to Plaintiffs' motion, Griggs is deemed to have admitted Plaintiffs' statement of material facts submitted in support of their cross-motion for summary judgment to the extent such facts are not otherwise contradicted by the record.
Official immunity under Georgia law "offers limited protection from suit to governmental officers and employees." Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476, 481 (1994) (citing Cooper v. Swofford, 258 Ga. 143, 368 S.E.2d 518 (1988)); Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987), cert. denied, 484 U.S. 998, 108 S.Ct. 685, 98 L.Ed.2d 638 (1988). Individual government employees are shielded by official immunity from damages suits unless the plaintiff can establish that the official negligently performed a ministerial act or performed a discretionary act with malice or an intent to injure. See Grammens v. Dollar, 287 Ga. 618, 697 S.E.2d 775, 777 (2010); Glass v. Gates, 311 Ga.App. 563, 716 S.E.2d 611, 621 (2011), cert. granted (Jan. 23, 2012), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012).
Whether Griggs is entitled to official immunity is ultimately a question of
Glass, 716 S.E.2d at 621 (quoting Nicholas v. Prather, 286 Ga.App. 889, 650 S.E.2d 380, 387 (2007)). "The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis." Greenway, 730 S.E.2d at 749 (internal citation and punctuation omitted); Vann v. Finley, 313 Ga.App. 153, 721 S.E.2d 156 (2011).
Grammens, 697 S.E.2d at 777; Glass, 716 S.E.2d at 621. "Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task." Greenway, 730 S.E.2d at 750 (internal citation and punctuation omitted); Barnard v. Turner Cnty., 306 Ga.App. 235, 701 S.E.2d 859 (2010).
The Georgia Supreme Court has held that generally a law enforcement officer exercises discretion in responding to an emergency call, engaging in high speed chases, executing a search warrant, and firing a gun at a suspect. Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 345-46 (1989) (high speed car chase); Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994) (emergency call); Kidd v. Coates, 271 Ga. 33, 518 S.E.2d 124, 125 (1999) (plaintiff conceded that officers' acts in executing warrant and firing guns were discretionary). Plaintiffs argue, however, that during his armed pursuit of D.M.C., Griggs was performing a ministerial duty pursuant to the Fulton County Police Department's use of force training requiring officers to index their weapons. In support of their argument, Plaintiffs offer the testimony of Officer Griggs himself, Lieutenant Richard Nable, the chief officer over firearm training for the Fulton County Police Department, and the affidavit of Assistant Chief of Police Gary Stiles.
Officer Griggs admitted that "he had an absolute duty to keep his finger off the trigger at all times, unless he intended to shoot, and that he had no discretion to do otherwise" pursuant to his police training. (Pls.' SMF ¶¶ 24, 28-29.) Officer Griggs further admits that by failing to properly index his finger, he failed to follow that training. (Id. ¶¶ 29-31.) In addition, according to Assistant Chief Stiles,
(Stiles 1st Aff. ¶ 4.) Similarly, Officer Griggs testified that:
(Griggs Dep. 115:21-116:14.)
(Griggs Dep. 233:5-9.) In addition, Lieutenant Nable testified that:
(Nable Dep. 75:8-76:6.)
Based on this evidence, Plaintiffs assert that "the duty of a police officer to keep their finger off the trigger when not intending to shoot is an absolute duty that directs the officer to perform a specific action in a specific circumstance" in which there "is no room for deliberation." (Pls.' Resp. Br. at 23.) Thus, according to Plaintiffs, the evidence establishes that Griggs violated a ministerial duty and therefore is not entitled to official immunity for Plaintiffs' negligence claim as a matter of law.
In Glass v. Gates, the Georgia Court of Appeals found that an analogous situation created a factual dispute over whether a correctional officer was performing a ministerial or discretionary act. 716 S.E.2d at 621. Glass involved a county correctional facility inmate who was killed while operating a tractor on a prison work detail supervised by the defendant correctional officer.
Id. (quoting Grammens, 697 S.E.2d at 777 ("Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.")). The Court further acknowledged that, faced with evidence presented by the defendants that the officer also had discretion over whether to contact the work camp and request a service truck, including testimony from the warden, the officer's prior inconsistent statements during the investigation created "a factual dispute over whether a ministerial duty had been imposed upon [the officer]" that must be resolved by a jury. Id. at 622; see also Greenway, 730 S.E.2d at 750 (finding that trial court erred by granting summary judgment to sheriff's deputy based on official immunity where genuine issues of material fact existed as to whether his actions were in accordance with department policy, thus precluding determination as a matter of law of whether he breached a ministerial or discretionary duty).
The Georgia Court of Appeals in Gish v. Thomas addressed whether a sheriff's deputy was entitled to official immunity for the accidental death of a prisoner who committed suicide with the deputy's gun. 302 Ga.App. 854, 691 S.E.2d 900 (2010). Following the transport of the prisoner from one facility to another, the deputy placed his loaded service pistol in the front seat of his patrol car prior to exiting the vehicle to extract the prisoner. Id. at 902-903. While the deputy was outside the vehicle, the prisoner managed to retrieve the gun, place it in his mouth, and pull the trigger, killing himself. Id. at 903. The deceased's mother filed suit for wrongful death. The trial court in Gish found that the act of transporting prisoners was a discretionary function and granted the deputy immunity from suit. Id. at 904. On appeal, the plaintiff argued that the deputy committed negligent ministerial acts when he left his loaded weapon on the front seat of his vehicle and when he improperly handcuffed the prisoner. Id. The Georgia Court of Appeals agreed with the following reasoning of the trial court that under the facts of the case, transporting prisoners was a discretionary act:
Id. at 905. The plaintiffs in Gish argued, however, that the issue was not whether the act of transporting prisoners was discretionary or ministerial, but whether the specific acts of storing weapons in a patrol car and the handcuffing of inmates were discretionary or ministerial acts. Id. The Gish Court recognized, without deciding, that those specific acts could constitute the relevant inquiry for purposes of determining the deputy's entitlement to official immunity. However, because it was undisputed that at the time of the deceased's death, the sheriff's office did not have written departmental policies or procedures governing handcuffing inmates during transport or the securing of weapons in patrol cars, the Court of Appeals found that trial court properly rejected the plaintiff's argument that there were established policies and procedures giving rise to a ministerial duty in the case.
In support of its own motion for summary judgment, Fulton County submitted evidence that the Fulton County Police Department maintained and continues to maintain policies prohibiting officers from placing their fingers inside the trigger guard of their firearms unless they reasonably believe their life is in danger or that they will suffer serious bodily injury. (Fulton Cnty. SMF ¶ 5.) Officer Griggs was aware of the Fulton County policy that under no circumstances is an officer to have his finger on the trigger unless he intends to use deadly force. (Id. ¶ 45.) Plaintiffs have presented evidence, undisputed at this point, that Officer Griggs admitted that there was no need to use deadly force under the circumstances and that he should not have had his finger on the trigger. Here Griggs testified that he violated the County's training protocols on the night of the incident by stating "obviously my finger wasn't indexed" as his training required, because his finger must have been on the trigger when the gun discharged.
The Georgia Constitution provides that state officers and employees "may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions." GA. CONST., art. I, § 2, ¶ IX(d). When determining whether a public agent is entitled to official immunity for discretionary acts, a court must evaluate the agent's subjective intent. Jordan v. Mosley, 487 F.3d 1350 (11th Cir.2007) ("Unlike qualified immunity under federal law, we must inquire into [the public agent's] subjective intent to determine whether he has official immunity under Georgia law."). Specifically, a public agent loses the protection of official immunity if the agent acted with "actual malice or intent to injure." Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 345 (2001). "Actual malice" refers to "a deliberate intention to do wrong" which is more than simply "reckless disregard for the rights or safety of others." Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 60 (2007) (quoting Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d 336 (1996)). The agent's deliberate intention "must be the intent to cause the harm suffered by the plaintiffs." Marshall v. Browning, 310 Ga.App. 64, 712 S.E.2d 71, 74 (2011). Like actual malice, the term "intent to cause injury" means the "actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury." Id.
Plaintiffs contend that malice may be inferred
(Griggs Dep. 207:7-208:5.) Upon discovering that his gun had discharged, Griggs said "Oh, God I shot him. I AD'd," meaning that he had an accidental discharge. (Griggs Dep. 30:1-16, 231:4-12.) The department audio tapes captured Officer Griggs making multiple requests for an ambulance and emergency EMS personnel in which he can be heard speaking to D.M.C. and saying "please hang in there, I'm sorry, I'm so sorry, please hang in, stay with me." (Griggs Dep. 231:4-233:25; Griggs Dep. Ex. 2, at 5.) Moreover, Plaintiffs state in their own presentation of the facts that "Griggs admits that he accidentally pulled the trigger and shot D.M.C." (Pls.' SMF ¶ 22.) Griggs admits that there was no need to use deadly force under the circumstances of this case (and he in fact did not intend to use deadly force). Based on Griggs' own admissions, there is no reason to question the truthfulness of his characterization of the shooting as unintentional — i.e. not motivated by malice or planned. See Luna v. Ridge, 436 F.Supp.2d 1163, 1166 (S.D.Cal.2006) (finding evidence supported conclusion that shooting was an actual accident based upon investigators conclusion that an outside force interfered with normal functioning of the gun and in light of the officer's stating "oh, shit" when he saw suspect was wounded).
Accordingly, in light of this evidence the Court finds that no jury could reasonably conclude that Officer Griggs acted with malice or with the intent to injure D.M.C. when he pushed him to the ground to make the arrest or by accidentally shooting him in the back of the head. Plaintiffs' Cross-Motion for Partial Summary Judgment [Doc. 73] on this basis is therefore
The parties disagree whether there are genuine issues of material fact as to whether an official custom or policy of Fulton County, including the failure to train officers how to prevent accidental discharges, was a moving force behind the violation of D.M.C.'s constitutional rights. As the Court previously found that Officer Griggs' actions did not amount to excessive force in violation of D.M.C.'s Fourth Amendment rights, Plaintiffs' claim against Fulton County cannot survive summary judgment. Best v. Cobb Cnty., 239 Fed.Appx. 501, 504 (11th Cir.2007) (concluding that there can be no municipal liability for failure to train without an underlying constitutional violation by the officer); see also Rooney v. Watson, 101 F.3d 1378, 1381 n. 2 (11th Cir.1996) (stating that the plaintiffs'"failure to train" claim could not exist independent of an underlying constitutional violation); City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam) ("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."). "[A]n inquiry into a governmental entity's custom or policy is relevant only when a constitutional deprivation has occurred." Rooney, 101 F.3d at 1381 (citing Vineyard v. County of Murray, 990 F.2d 1207, 1211 (11th Cir.1993) (per curiam) ("Only when it is clear that a violation of specific rights has occurred can the question of § 1983 municipal liability for the injury arise.")). Accordingly, the Court
For the above and foregoing reasons, the Court
Despite the fact that all federal claims have now been dismissed, the Court exercises its discretion to retain supplemental jurisdiction over Plaintiffs' state law negligence claim pursuant to 28 U.S.C. § 1367. "The policy of supplemental jurisdiction is to support the conservation of judicial energy and avoid multiplicity in litigation. Having a state court rehash issues that have already been argued in federal court is [] likely to cause multiplicity in litigation." Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 746 (11th Cir. 2006) (citing Rosado v. Wyman, 397 U.S. 397, 405 (1970)). In addition, the Gibbs
The parties are
