Opinion
CIVIL ACTION FILE NO. 4:18-CV-00252-HLM
2020-08-17
Michelle BOHANAN, individually on behalf of herself and the minor children of Brandon Bohanan, Plaintiff, v. PAULDING COUNTY, GEORGIA, et al., Defendants.
Chloe Elodie Dallaire, The Hornsby Law Group, Atlanta, GA, James E. Dearing, Jr., James E. Dearing, Jr., P.C., East Point, GA, for Plaintiff. Gary Kevin Morris, Terry Eugene Williams, Williams, Morris & Waymire, LLC, Buford, GA, for Defendants.
Chloe Elodie Dallaire, The Hornsby Law Group, Atlanta, GA, James E. Dearing, Jr., James E. Dearing, Jr., P.C., East Point, GA, for Plaintiff.
Gary Kevin Morris, Terry Eugene Williams, Williams, Morris & Waymire, LLC, Buford, GA, for Defendants.
ORDER
Harold L. Murphy, SENIOR UNITED STATE DISTRICT JUDGE
This case is before the Court on Defendants’ Motion for Summary Judgment [73].
I. Background
Keeping in mind that, when deciding a motion for summary judgment, the Court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion, the Court provides the following statement of facts. Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). This statement does not represent actual findings of fact. Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525, 530 (11th Cir. 2013). Instead, the Court has provided the statement simply to place its legal analysis in the context of this particular case or controversy.
As required by the Local Rules, Defendants filed a Statement of Material Facts in support of their Motion. ("DSMF"). (Docket Entry No. 73-2.) Plaintiffs filed a response to DSMF ("PRDSMF"). (Docket Entry No. 77-3.)
As permitted by the Local Rules, Plaintiffs filed a Statement of Additional Facts in opposition to Defendants’ Motion ("PSAF"). (Docket Entry No. 77-2.) Defendants filed a response to PSAF ("DRPSAF"). (Docket Entry No. 92-1.)
The Court evaluates DSMF, PRDSMF, PSAF, and DRPSAF below. Where one party has objected to a proposed fact, and the Court does not explicitly discuss the objection, that party can conclude that the Court has overruled the objection. If the Court does not reference a proposed fact or the substance of a proposed fact, the parties can conclude that the Court has found the proposed fact immaterial or unsupported.
A. Factual Background
Sometime on October 4, 2017, Paulding County Sheriff's Deputy Jimmy Motes received information that Leila Sierra Duncan, a person suspected of methamphetamine trafficking, was hiding out at 288 Township Drive. (DSMF ¶ 1; PRDSMF ¶ 1.) Deputy Motes was familiar with that address, as he and many other deputies had been sent to the residence numerous times. (DSMF ¶ 2; PRDSMF ¶ 2.) At the time of the events giving rise to this case, Brandon Bohanan lived at 288 Township Drive. (DSMF ¶ 4; PRDSMF ¶ 4.)
In an effort to locate Ms. Duncan, Deputy Motes drove to the house at 288 Township Drive when he reported for work the next day. (DSMF ¶ 6; PRDSMF ¶ 6.) Deputy Motes was accompanied by two other county officers, Deputy Adam Cook and Sergeant Brooks Emory. (DSMF ¶ 7; PRDSMF ¶ 7.) When the officers arrived, they saw a vehicle with three occupants parked outside. (DSMF ¶ 8; PRDSMF ¶ 8.) They also observed a spray-painted motorcycle partially sticking out of the basement door. (DSMF ¶ 9; PRDSMF ¶ 9.) Deputies Motes and Emory went to the front door of the house, while Sergeant Cook addressed the individuals in the vehicle. (DSMF ¶ 10; PRDSMF ¶ 10.)
Sergeant Cook began by asking all three occupants for their names and birth dates, so he could verify their identities via radio dispatch. (DSMF ¶ 12; PRDSMF ¶ 12.) The male passenger then provided a name and birth date that did not return, at which point Sergeant Cook asked him to step out of the vehicle for further investigation. (DSMF ¶ 13; PRDSMF ¶ 13.) When the man did so, Sergeant Cook noticed that he was wearing a gun holster. (DSMF ¶ 14; PRDSMF ¶ 14.)
The deputies, meanwhile, made contact with Terry Mosely—Brandon Bohanan's uncle—at the front door. (DSMF ¶ 15; PRDSMF ¶ 15.) When Deputy Motes asked whether Ms. Duncan was inside, Mr. Mosely answered that she had been there, but he was not sure where she was at that exact time. (DSMF ¶ 17; PRDSMF ¶ 17.) Mr. Mosely then allowed Deputy Motes to enter the home, at which point Renee Bohanan—Brandon Bohanan's mother and the owner of the house—gave the officers permission to look around and confirm that Ms. Duncan was not there. (DSMF ¶ 18; PRDSMF ¶ 18.)
Deputies Motes and Emory then performed a brief search of the upstairs portion of the home before returning to the driveway, where Sergeant Cook advised them that the male passenger had given a false name and was wearing a gun holster. (DSMF ¶ 19; PRDSMF ¶ 19.) As Deputy Motes assisted in identifying the man, Deputy Emory walked over to keep watch over the remaining occupants of the vehicle. (DSMF ¶ 20; PRDSMF ¶ 20.) When he had done so, the vehicle's driver admitted to Deputy Emory that she was sitting on a pistol. (DSMF ¶ 20; PRDSMF ¶ 20.) Around the same time, the male passenger admitted to Deputy Motes that his actual name was Jacob Barkwell. (DSMF ¶ 21; PRDSMF ¶ 21.)
When Deputy Motes asked Mr. Barkwell what he and his companions were doing at the house, he answered that they were "there to see Brandon Bohanan." (DSMF ¶ 22; PRDSMF ¶ 22.) Mr. Barkwell went on to explain that Mr. Bohanan was in the basement and that they had just spoken on the phone. (DSMF ¶ 23; PRDSMF ¶ 23.) Deputy Motes recognized Brandon Bohanan's name and knew that there were outstanding warrants for his arrest. (DSMF ¶ 24; PRDSMF ¶ 24.) The officers’ dispatcher quickly confirmed that those warrants were still active. (DSMF ¶ 25; PRDSMF ¶ 25.)
According to Plaintiff's Exhibit 3, which Defendants do not appear to dispute, Mr. Bohanan's arrest warrants were based on probation violations—which in turn were related to earlier convictions for forgery, theft by deception, and trespassing. (See Pl.’s Ex. 3 (Docket Entry No. 77-11) at 1.)
Upon overhearing Deputy Motes’ conversation with dispatch, Deputy Ricky Waters called Deputy Motes to warn that, on a previous occasion, Mr. Bohanan had barricaded himself in the basement bedroom when Deputy Waters tried to arrest him at 288 Township Drive. (DSMF ¶ 26; PRDSMF ¶ 26.) Deputy Waters added that Mr. Bohanan eventually did open the door, but only after deputies threatened to breach it. (DSMF ¶ 27; PRDSMF ¶ 27.) Hearing this, given Deputy Waters’ familiarity with the house and his past experience negotiating with Mr. Bohanan, Deputy Motes requested that Deputy Waters and his K9 also respond to the scene. (DSMF ¶ 28; PRDSMF ¶ 28.)
At this point, Deputies Motes and Emory entered the basement, went to the bedroom door, and knocked loudly. (DSMF ¶ 29; PRDSMF ¶ 29.) According to Deputy Motes, the next few minutes unfolded in the following way:
We beat on the door, we beat on the wall. I attempted ... I told Brandon, it's Jimmy Motes, I'm here, you have a warrant, you just have probation warrants you need to take care of, just open the door. I went over and over again. I kept yelling in there. I kept yelling for Brandon to open the door or anybody in the room with Brandon, please open the door, don't catch another charge. Because if we have to breach this door, you will catch another charge. I do not want to tear up your door, Brandon, don't make me breach it.
At some point, I went to the stairs and yelled up the stairs for somebody in Brandon's family to come to the door. Terry Mosely came to the door, I said, do you have a key to this door, we do not want to tear up this door. He says, no, we do not have it. I said, can somebody just come down here and get this door open us so we don't have to breach it. He said, no, and closed the door. I went back to yelling and beating on the wall and beating on the door.
(DSMF ¶ 30; PRDSMF ¶ 30.) The deputies continued to beat on the bedroom door for roughly thirty to forty-five minutes. (DSMF ¶ 31; PRDSMF ¶ 31.) Deputy Motes, a trained negotiator, attempted to get Mr. Bohanan talking during this time, but no response ever came from the other side of the door. (DSMF ¶ 32; PRDSMF ¶ 32.)
Eventually, Sergeant Cook also came into the basement to ask about the deputies’ progress. (DSMF ¶ 33; PRDSMF ¶ 33.) Deputy Motes responded that they likely would have to breach the door because Mr. Bohanan would not open it. (DSMF ¶ 33; PRDSMF ¶ 33.) When Deputy Waters arrived soon afterward, he took his K9 downstairs and had the dog bark in an attempt to convince Mr. Bohanan to open the door. (DSMF ¶ 34; PRDSMF ¶ 34.) This too was unsuccessful.
As the situation continued to develop, several more county officers were called in to assist, including Deputy Mike Ellison. (DSMF ¶ 37; PRDSMF ¶ 37.) Deputy Ellison regularly trained together with Deputy Motes, Deputy Waters, and Sergeant Cook. (DSMF ¶ 39; PRDSMF ¶ 39.) Making forced entries was a part of that training. (DSMF ¶ 39; PRDSMF ¶ 39.) Moreover, every member of their division carried a battering ram and received extensive training on how to breach doors. (DSMF ¶ 41; PRDSMF ¶ 41.)
When Sergeant Cook informed Deputy Ellison that they likely would need to breach the bedroom door, Deputy Ellison retrieved his assigned ram from his patrol vehicle. (DSMF ¶ 42; PRDSMF ¶ 42.) Sergeant Cook then gave permission to breach the door, at which point the deputies formed a "stack." (DSMF ¶ 43, 56; PRDSMF ¶ 43, 56.) Deputy Ellison was situated as the breacher, with the other deputies stacked behind him. (DSMF ¶ 56.) Deputy Waters then announced that ha was an officer with the Paulding County Sheriff's Office's K-9 Unit, and that he was going to send in his dog if the room's occupants did not come out immediately. (DSMF ¶ 57; PRDSMF ¶ 57.) Several moments passed without anyone opening the door, so Deputy Ellison began to use his ram. (DSMF ¶ 58; PRDSMF ¶ 58.) The bedroom door did not budge, however, even after approximately fifteen to twenty blows from Deputy Ellison's battering ram. (DSMF ¶¶ 58-59; PRDSMF ¶¶ 58-59.)
A "stack" is a tactical formation that is widely used by law enforcement when making forced entries. (DSMF ¶ 44.) To form a stack, officers line up tightly behind the door breacher. (DSMF ¶ 45.) Once the door is breached, the door breacher steps back and allows the officers in the stack to enter first. (DSMF ¶ 45.) The officers in the stack then enter with weapons drawn and each move in different directions to "clear" the room. (DSMF ¶ 46.)
According to Defendants, the basement area outside Mr. Bohanan's bedroom door presented several challenges for Deputy Ellison and the other officers. (DSMF ¶ 48.) First, the entire basement was cluttered with furniture, vehicles, boxes, and other items, which made navigating the room extremely difficult. (DSMF ¶ 49-50.) Second, the basement was very dark. (DSMF ¶ 52.) Third, there was no place for the officers to take cover as they lined up outside the bedroom door because the basement walls were made of sheetrock, which cannot provide protection from bullets. (DSMF ¶ 53.) Finally, because the bedroom door was in the corner of the room and behind a car, there was little room to swing a battering ram with full force. (DSMF ¶ 54.)
Roughly around this time, Deputies David Martin and Link Davis also arrived on the scene. (DSMF ¶ 68; PRDSMF ¶ 68.) And because Deputy Ellison had been unsuccessful thus far in breaching the bedroom door, he asked Deputy Martin to take over. (DSMF ¶ 71; PRDSMF ¶ 71.) After Deputy Martin used the battering ram a few times himself, he could tell that something was blocking or reinforcing the door. (DSMF ¶ 73; PRDSMF ¶ 73.) Further inspection then revealed a "very large nut and bolt coming from the left part of the door." (DSMF ¶ 74; PRDSMF ¶ 74.) Deputy Martin therefore began striking the surrounding walls, rather than the door itself, to loosen the barricade. (DSMF ¶ 75; PRDSMF ¶ 75.) This eventually caused the bedroom door to give way and swing open. (DSMF ¶ 76; PRDSMF ¶ 76.)
Immediately after the door was open, Deputy Martin released the battering ram, drew his firearm, and entered the basement bedroom. (DSMF ¶ 78; PRDSMF ¶ 78.) According to Defendants, the room was extremely dark—which would have given any person inside a tactical advantage as officers tried to move through the doorway. (DSMF ¶ 79; PRDSMF ¶ 79.) The only light in the bedroom came from two sources, a security camera monitor and a sliding-glass door that was partially covered by blinds. (DSMF ¶ 91; PRDSMF ¶ 91.) A black-and-white television or monitor was facing the corner of the room opposite the bedroom door. (DSMF ¶ 92; PRDSMF ¶ 92.)
At the time Deputy Martin came through the doorway, Mr. Bohanan was sitting in the bedroom with a woman named Emelia Blehm. (DSMF ¶ 80; PRDSMF ¶ 80.) Just before then, Mr. Bohanan had been "laying back on the chaise lounge texting," and Ms. Blehm was "sitting next to him on the floor." (DSMF ¶ 93; PRDSMF ¶ 93.) Once Deputy Martin entered, Ms. Blehm later described, "everything [began to happen] very quickly at this point, everything." (DSMF ¶ 94; PRDSMF ¶ 94.) The Parties give quite different accounts, however, of what exactly "everything" was.
The Court disregards DSMF ¶¶ 81-90 as irrelevant to the issues in this case. Those paragraphs describe what Mr. Bohanan and Ms. Blehm were doing "in the days leading up to October 4th," as well as in the hours and minutes before Deputy Martin breached the bedroom door. (See DSMF ¶¶ 81-90). Such background details cannot matter here, however, because neither Deputy Martin nor any of the other officers had any way of knowing about them when they entered the room. A claim of excessive force must rise or fall based solely on what law enforcement knew at the moment the force was used. See Cty. of Los Angeles, Calif. v. Mendez, ––– U.S. ––––, 137 S. Ct. 1539, 1546–7, 198 L.Ed.2d 52 (2017) ("Excessive force claims ... are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.") (citation omitted).
According to Defendants, after Deputy Martin broke through the bedroom door, Mr. Bohanan immediately stood up and started stepping forward. (DSMF ¶ 95.) As he rose from the chaise lounge, Mr. Bohanan either lunged or leaned toward Deputy Martin with his "arms kind of forward," while holding a cell phone and a cigarette. (DSMF ¶ 96.) Mr. Bohanan then moved quickly toward Deputy Martin, still with his arms out, yelling "Hey! Hey! Hey!" (DSMF ¶ 97.) Deputy Martin, meanwhile, immediately announced "Sheriff's Office!" as he stepped through the doorway and, upon turning and seeing Mr. Bohanan, shouted "get the fuck on the ground" two times. (DSMF ¶ 100.) Mr. Bohanan allegedly ignored both of these commands, however, and continued moving closer to Deputy Martin. (DSMF ¶ 101.) Deputy Martin interpreted Mr. Bohanan's rapid movement "as [him] doing bodily harm to me or someone else in my stack." (DSMF ¶ 105.) In response to this perceived threat, Deputy Martin fired one shot, which struck Mr. Bohanan in the head and killed him. (DSMF ¶ 109.)
Deputy Martin could not recall exactly how many steps he took into the bedroom. (DSMF ¶ 102.) But because the doorway through which he entered was situated on the bedroom's left wall, Defendants assert that he would have needed to walk at least the full length of the door before he could have turned left to face Mr. Bohanan. (DSMF ¶¶ 102-03.)
According to Plaintiff, on the other hand, Mr. Bohanan did not lunge toward Deputy Martin or make any other threatening movements. (PSMF ¶ 33.) Instead, Ms. Blehm testified that Mr. Bohanan simply stood up and raised both of his hands above his head, as if in surrender, while saying "Hey! Hey! Hey!" (PSMF ¶ 31.) Ms. Blehm further described the basement bedroom as being well-lit enough to see, even though the lights were off. (PSMF ¶ 35.) By her account, daylight was coming through the blinds of the sliding-glass door, and the television in the room was on. (Id. ) Finally, Ms. Blehm disputed whether Deputy Martin commanded Mr. Bohanan to get on the ground at any point. (See Dep. of Emelia Blehm (Docket Entry No. 81) at 182:23–183:2 ("[F]rom the time that they came in through the door ... there was never any get down on the ground or anything like that. There was no time for that.").) After Deputy Martin fired his gun, Mr. Bohanan fell backward and collapsed at the foot of the chaise lounge, where he had been sitting just beforehand. (PSMF ¶¶ 37, 54.)
Because of the speed with which these events unfolded—whatever those events might have been—none of the other officers on the scene saw what occurred in the seconds leading up to Brandon Bohanan's death. (PSMF ¶ 32.) Deputies Motes, Ellison, Emory, Waters, and Davis had yet to follow Deputy Martin into the bedroom and therefore only heard the gunshot. (PSMF 33.) Sergeant Cook, meanwhile, had left the basement and was outside the house at that time. (PSMF ¶ 41.) Thus, the only eyewitnesses to Mr. Bohanan's actions immediately before he died are Deputy Martin and Ms. Blehm.
To corroborate Ms. Blehm's account of the shooting, however, Plaintiff submitted the testimony of an expert witness, Ross M. Gardner. After examining Mr. Bohanan's bullet wound, the blood patterns that resulted from the gunshot, and other forensic evidence, Mr. Gardner gave the following conclusions:
Although it is possible that Mr. Bohanan was 3-4’ from Officer Martin (assuming the closest possible approach of Officer Martin and eliminating the distance of Officer Martin's arm extended), this distance is not consistent with that described by Officer Martin. This estimate is conservative, as no functional measurements were taken by GBI, thus this minimum distance could easily have been greater.
The path of the bullet through Mr. Bohanan demonstrates only a slight downward path through the head. If "lunging" forward, this would naturally cause the head to lower both in general height above the ground as well as tilting forward. Both repositioning aspects (lower height and tilted forward) would reorient the head relative to the muzzle. Such reorientation would create a general expectation of a more distinct downward trajectory through the head.
If lunging forward, Mr. Bohanan's mass would naturally be moving South (toward the pole). Once critically injured, the expected collapse would be down and toward the white pole. Mr. Bohanan collapsed backward (to the South), to a fully supine position. There is no evidence he remained upright for any period or moved under his own power while upright, thus allowing any vector change in his mass.
The presence of a cigarette in Mr. Bohanan's right hand as he lay in final position (3060) is counter-intuitive to initiating an aggressive movement (e.g.
lunging) or any subsequent conscious upright movement following injury.
Based on the limited photographs of the scene (specifically the area of the white pole, and top of the coffee table) no evident backsplatter were observed, eliminating any functional corroboration of what distance Mr. Bohanan was to the pole or what height his head might have been positioned when he was wounded.
(Expert Report of Ross M. Gardner (Docket Entry No. 77-14) at 4.)
B. Procedural History
Plaintiff filed this lawsuit on November 18, 2018. (Docket Entry No. 1.) She claims that Defendants violated Brandon Bohanan's rights under Fourth Amendment of the United States Constitution by unreasonably using deadly force against him. (Id. at 2.) She therefore seeks compensation for his death under 42 U.S.C. § 1983. (Id. ) She also raises related state-law claims for wrongful death, negligence, and battery. (Id. )
Although Plaintiff's relationship to Brandon Bohanan is not clear from the face of her complaint, the record shows that she is his wife. (See DSMF ¶ 110; PRDSMF ¶ 110; Dep. of Michelle Bohanan (Docket Entry No. 73-23) at 27:8-9.) She purports to bring this lawsuit "individually on behalf of herself and the minor children of Brandon Bohanan." (Docket Entry No. 1 at 1.)
But as Defendants correctly point out, Mr. Bohanan's children are not proper parties to this case. Under Georgia law, the right to recover for wrongful death vests solely in the surviving spouse of the deceased, if one exists. See O.C.G.A. § 51-4-2. This rule applies both to state-law claims to federal claims under 42 U.S.C. § 1983. See Carringer v. Rodgers, 331 F.3d 844, 850 n.9 (11th Cir. 2003) (explaining that "Georgia's wrongful death statute is incorporated into § 1983").
Michelle Bohanan is therefore the only person entitled to recover for Brandon Bohanan's wrongful death, and the Court consequently disregards any reference in her complaint to Mr. Bohanan's children.
On June 18, 2020, Defendants jointly filed a Motion for Summary Judgment, which seeks dismissal of all claims against them. (Docket Entry No. 73.) The briefing process for the Motion is now complete, and the Court therefore finds this matter ripe for resolution.
II. Legal Standard
A district court must grant a motion for summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it would "affect the outcome of the suit under the governing law." Flournoy v. CML-GA WB, LLC, 851 F.3d 1335, 1337 (11th Cir. 2017) (internal quotation marks and citation omitted). A dispute about a fact is "genuine" only if the evidence "is such that a reasonable jury could return a verdict for the [non-moving party]." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993) ). In other words, the non-moving party's competing version of the facts must have some "real basis in the record" to overcome summary judgment. Id.
The party seeking summary judgment bears the initial burden of showing the court that there is no genuine dispute of material fact. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). It may do so by pointing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory responses," or other forms of evidence. Fed. R. Civ. P. 56(c)(1)(a). Once the moving party has supported its motion adequately, the burden shifts to the non-moving party to rebut the motion with specific evidence demonstrating a genuinely disputed issue for trial. Id.
In evaluating a motion for summary judgment, the Court must view the evidence in the light most favorable to the party opposing the motion, and it must draw all reasonable inferences from the evidence in that party's favor. Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013) ; Strickland, 692 F.3d at 1154. The Court also must "resolve all reasonable doubts about the facts in favor of the non-movant." Kirkwood, 707 F.3d at 1280 (internal quotation marks and citations omitted). The Court may not make credibility determinations, weigh conflicting evidence, or assess the quality of the evidence presented. Strickland, 692 F.3d at 1154 ; see also Mize, 93 F.3d at 742 ("It is not the court's role to weigh conflicting evidence or to make credibility determinations; the non-movant's evidence is to be accepted for purposes of summary judgment.") Put simply, the Court does not make factual findings at summary judgment. Rich, 716 F.3d at 530. Rather, any genuine disputes about the material facts must go to a trial.
III. Discussion
As mentioned above, Plaintiff's complaint raises constitutional claims of excessive force under federal law, as well as state-law claims for battery and wrongful death. The Court first addresses Plaintiff's federal claims before proceeding to her claims under Georgia law.
A. Federal Claims
Plaintiff brings her federal constitutional claims under 42 U.S.C. § 1983, which provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity ...."
42 U.S.C. § 1983. Defendants contend, however, that they are entitled to qualified immunity from Plaintiff's lawsuit.
Qualified immunity generally protects government officers from personal liability for their official actions—so long as they do not violate clearly established rights of which a reasonable person would have known. Morris v. Town of Lexington, Ala., 748 F.3d 1316, 1321 (11th Cir. 2014) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). This immunity exists to strike a balance between two important interests: "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231, 129 S.Ct. 808.
To determine whether a government officer is entitled to qualified immunity, the Eleventh Circuit applies a two-part analysis: First, the defendant must prove that the allegedly unconstitutional conduct occurred within the scope of his or her discretionary authority. Penley v. Eslinger, 605 F.3d 843, 849 (11th Cir. 2010). At this stage, the court asks "whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within [his or her] power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). Then, once the defendant shows that he or she acted within his or her discretionary authority, the burden shifts to the plaintiff to demonstrate: (1) that the defendant's conduct actually violated the plaintiff's rights and (2) that the specific rights at issue were "clearly established when the defendant committed the act complained of." Morris, 748 F.3d at 1322 (internal quotation marks and citation omitted). A court may begin its analysis with either prong. Id. at 1322. If the plaintiff fails to make either of the required showings, however, the defendant officer is immune from suit. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).
In making this determination, the Court does not inquire "whether it was within the defendant's authority to commit the allegedly illegal act." Holloman ex rel. Holloman, 370 F.3d at 1266 (internal quotation marks omitted). Instead, the Court must "look to the general nature of the defendant's action, temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances." Id.
In this case, both sides agree that Deputy Martin and his fellow officers were acting within their discretionary authority when they attempted to arrest Brandon Bohanan. The burden therefore shifts to Plaintiff to show: (1) that Defendants actually violated Brandon Bohanan's constitutional rights, and (2) that those rights were clearly established at the time of the violation.
1. Deputy Martin
a. Violation of a Constitutional Right
The Fourth Amendment's protection against unreasonable searches and seizures "encompasses the plain right to be free from the use of excessive force in the course of an arrest." Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). Nevertheless, a police officer's authority to make an arrest at all "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865.) Furthermore, a court's analysis of whether a given use of force was excessive always must "allow for the fact that officers are often required 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.’ " Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (quoting Plumhoff v. Rickard, 572 U.S. 765, 773, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ).
With respect to deadly force, specifically, "a police officer may use such force to dispel a threat of serious physical harm to either the officer or others, or to prevent the escape of a suspect who threatens this harm." Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (citation omitted); see also Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005) (holding that it is "constitutionally reasonable for an officer to use deadly force when he has probable cause to believe that his own life is in peril"). In determining whether a suspect actually appeared to pose this type of threat, courts must take care to assess the facts of each case "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Stephens v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir. 2017) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865.)
In this case, Defendants have offered a variety of reasons why, under their version of the facts, Brandon Bohanan appeared to pose a threat of serious harm to Deputy Martin and his fellow officers at the moment he was shot. Broken down, however, Defendants’ argument essentially proceeds in three parts.
Defendants first argue that, because the residence at 288 Township Drive was associated with "a lot of drug activity," (Martin Dep. at 88:1), the officers had ample reason to believe that Mr. Bohanan could be armed. Several deputies on the scene that day had responded to this address numerous times before, sometimes to execute drug-related warrants, and they knew Mr. Bohanan to be a drug user. Law enforcement also had received word that Leila Sierra Duncan—a suspected methamphetamine trafficker—might be hiding out at the house. The officers knew from both training and experience that "where you have drugs, you have guns," (Martin Dep. at 88:1-2), and that maxim seemed to be proven true after the officers learned that Jacob Barkwell, a man outside the home who claimed to be visiting Mr. Bohanan, was concealing a pistol.
Next, Defendants assert that, because Mr. Bohanan had barricaded himself in his bedroom, it was reasonable to assume he would continue to resist arrest. The officers had tried to negotiate with Mr. Bohanan for more than thirty minutes and repeatedly warned him that they planned to break down the door if necessary, but Mr. Bohanan still refused come out or even speak. Then, after Deputy Ellison's first attempts to breach the door failed, the officers noticed that someone had taken measures to fortify the doorway by driving metal bolts through the wall. This demonstrated to them that Mr. Bohanan was willing to go to extreme lengths to evade law enforcement.
Finally, Defendants contend that Deputy Martin, immediately upon entering the basement bedroom, was confronted by a startling and potentially life-threatening scene that warranted the use of deadly force. According to their account, as soon as Deputy Martin stepped through the doorway, Mr. Bohanan suddenly started moving toward him in a threatening manner. Mr. Bohanan then continued stepping forward despite Deputy Martin's multiple commands to get on the ground. And because all lights were turned off, the room was too dark for Deputy Martin to see Mr. Bohanan's hands. Faced with these circumstances, and given the serious risk that Mr. Bohanan could be carrying a weapon, Deputy Martin made a split-second decision to fire his gun in self defense.
If Defendants’ account of these events was the only one supported by the record, the Court would have no trouble concluding that Deputy Martin's actions did not violate the Fourth Amendment. A police officer may use deadly force to protect himself or others when a suspect appears to be armed with a lethal weapon and prepared to use it. See Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (finding deadly force to be reasonable where the suspect was carrying a gun that was "available for ready use"); but see Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016) ("[T]he mere presence of a gun or other weapon is not enough to warrant the exercise of deadly force and shield an officer from suit. Where the weapon was, what type of weapon it was, and what was happening with the weapon are all inquiries crucial to the reasonableness determination."). And the Eleventh Circuit has noted many times that guns typically "go hand-in-hand with illegal drug operations." United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) (footnote omitted); see also United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011) ("[T]his Court has long recognized that, as Forrest Gump might say, drugs and guns go together like peas and carrots.").
Deputy Martin therefore had at least some grounds to suspect that Mr. Bohanan, who was known to be involved with illegal drugs, might be in possession of a firearm. And because the bedroom's barricaded door placed the officers at a tactical disadvantage, the Court must account for the fact that Deputy Martin had only seconds to assess whether Mr. Bohanan posed a lethal threat. See Crosby v. Monroe Cty., 394 F.3d 1328, 1334 (11th Cir. 2004) ("We must see the situation through the eyes of the officer on the scene who is hampered by incomplete information and forced to make a split-second decision between action and inaction in circumstances where inaction could prove fatal."). So if Mr. Bohanan did, as Defendants describe, lunge toward Deputy Martin in a dark room while disregarding police commands, it would have been reasonable for Deputy Martin to conclude that his life could be in danger and that deadly force was necessary to prevent a potentially armed attack. See 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.").
Plaintiff's key witnesses, however, tell a different story—one that would support a finding of excessive force. According to Emelia Blehm, an eyewitness to the incident, Mr. Bohanan never lunged or made any aggressive movements toward Deputy Martin at any point. Instead, Ms. Blehm testified, Mr. Bohanan merely stood and raised his hands in a gesture of surrender. The conclusions of Plaintiff's forensic expert are consistent with Ms. Blehm's account, as he testified that it is highly unlikely, based on the physical evidence from the scene, that Mr. Bohanan was lunging forward at the moment Deputy Martin fired his gun. Ms. Blehm also disputed whether Deputy Martin ever ordered Mr. Bohanan to get on the ground, (Blehm Dep. at 112:21-25), and she described the basement bedroom as having enough lighting to see other people and objects in the room. (Id. at 162:20–163:18.)
Taking all this testimony as true, as is required at this stage of the case, the Court finds that Deputy Martin violated Brandon Bohanan's constitutional right to be free from excessive force. The Eleventh Circuit's decision in Morton v. Kirkwood, 707 F.3d 1276 (11th Cir. 2013), is instructive. There, the court held that it was unreasonable for an officer to use deadly force against a person who, upon hearing police approach, shifted his vehicle into park and raised his hands in the air. Id. at 1282. Quite similarly to this case, the parties in Morton offered vastly differing descriptions of what actually had occurred, but the court emphasized that it was bound at summary judgment to accept the plaintiff's testimony that he was not—as the officers claimed—accelerating his car toward police at the time he was shot. Id. And under that version of the facts, because the unarmed and unmoving suspect was not posing an immediate threat of harm, law enforcement's decision to open gunfire on him was unconstitutional. Id.
Similarly here, an eyewitness has testified that Mr. Bohanan, like the suspect in Morton, was both unarmed and non-aggressive when Deputy Martin shot him. She maintains that Mr. Bohanan raised his hands over his head, made no threatening advances, and did not ignore any police commands. Under this account of the incident, which the Court must accept as true for purposes of summary judgment, the Fourth Amendment did not permit Deputy Martin to employ deadly force.
The Parties sharply dispute whether there was enough light in the basement bedroom for Deputy Martin to see Mr. Bohanan's hands. Deputy Martin testified that he was never saw Mr. Bohanan's hands and that it was "very dark." (Dep. of David Martin (Docket Entry No. 85) at 108:10-21; 111:1.) Ms. Blehm recalls, on the other hand, that the room was well-lit enough, from the television and the sliding-glass door, to see other persons and objects in the vicinity. (Blehm Dep. at 162:20–163:18.) But because the Court is required at summary judgment to view the evidence in the light most favorable to Plaintiff and draw all reasonable inferences in her favor, see Kirkwood, 707 F.3d at 1280, it must assume that Deputy Martin was able to see Mr. Bohanan's alleged gesture of surrender.
The fact that Mr. Bohanan had been resisting arrest up to that point by barricading his bedroom door does not change the Court's conclusion. To be sure, whether a suspect was resisting arrest is a key consideration in the excessive-force analysis. See Lee, 284 F.3d at 1197–98 (explaining that courts must take into account "whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight") (internal quotation marks and citation omitted). But the Eleventh Circuit repeatedly has held that when officers continue to use substantial force against a person "who has clearly stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated—that use of force is excessive." Piazza v. Jefferson Cty., Alabama, 923 F.3d 947, 955 (11th Cir. 2019) (quoting Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) ). So although Mr. Bohanan indisputably resisted the officers by denying them entry to the room, any need to use substantial force against him would have ended once the bedroom door was breached, at which point Mr. Bohanan appeared to surrender by raising his hands. Importantly, because Ms. Blehm testified that Deputy Martin did not, as he claims, order Mr. Bohanan to get down on the ground as he entered the room, the Court must assume that Mr. Bohanan was not disobeying police commands at the time he was shot. The Court therefore finds that, regardless of Mr. Bohanan's initial attempts to resist arrest, Deputy Martin's use of deadly force violated the Fourth Amendment after Mr. Bohanan surrendered to the officers and was not posing an immediate threat of harm.
b. Clearly Established Law
Although Plaintiff has established that Deputy Martin may have violated Brandon Bohanan's constitutional rights, Deputy Martin is still entitled to qualified immunity unless those rights were clearly established at the time of the alleged violation. A constitutional right is "clearly established" only if it "would have been apparent to every reasonable officer in [the defendant's] position that his use of force was unlawful." Perez, 809 F.3d at 1221–22 (citing Lee 284 F.3d at 1199 ). In other words, existing law must have placed the constitutional question at issue "beyond debate," such that "every reasonable official would have understood that what he is doing violates [that] right." Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (internal quotation marks and citation omitted).
In the Eleventh Circuit, a plaintiff can satisfy this standard in one of three ways. First, he or she can point to "a materially similar case [that] has already been decided, giving notice to the police." Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Second, he or she could demonstrate "that a broader, clearly established principle should control the novel facts in this situation." Id. (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). Lastly, in exceptionally rare cases, a plaintiff may be able to show that the defendant's conduct "so obviously violate[d] th[e] constitution that prior case law is unnecessary." Id. (citing Lee, 284 F.3d at 1199 ). But regardless of which method the plaintiff chooses, the "salient question" always remains "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 (citing Hope, 536 U.S. at 741, 122 S.Ct. 2508 ).
In this case, while Plaintiff has not pointed to any prior, binding decision with materially similar facts, the Court ultimately finds that the unlawfulness of Deputy Martin's conduct was clearly established in October of 2017. By as early as 2013, the Eleventh Circuit had recognized that "the use of deadly force against a non-resisting suspect who posed no danger violates a suspect's Fourth Amendment right to be free from excessive force." Morton, 707 F.3d at 1283 ; see also Perez, 809 F.3d at 1222 ("Our case law clearly establishes that the use of force against an arrestee who ... is not a threat, has not exhibited aggressive behavior, and has not actively resisted arrest is excessive." (citation omitted)). And at least by 2008, the Eleventh Circuit had held in plain terms that it is unconstitutionally excessive for officials to use substantial force against a person "who has clearly stopped resisting—whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated ...." Danley, 540 F.3d at 1309 (citation omitted); see also Salvato v. Miley, 790 F.3d 1286, 1294 (11th Cir. 2015) (denying qualified immunity where officers used deadly force against a suspect who was "retreating, apparently unarmed, and outside of striking distance," despite the fact that he had resisted arrest and "struck the officers multiple times").
So under Plaintiff's version of the facts, as supported by Emelia Blehm's testimony and the forensic analysis of Rick Gardner, a reasonable officer in Deputy Martin's position should have known that the Fourth Amendment forbade him from using deadly force against Mr. Bohanan. For although it is undisputed that Mr. Bohanan initially resisted arrest by barricading himself away from the police, the law is clear in this Circuit that prior resistance alone cannot justify employing deadly force after a suspect has stopped resisting. And in this case, a jury could conclude from Plaintiff's evidence that Deputy Martin—without issuing any commands or warnings—fatally shot an unarmed man who, despite earlier attempts to hide, was at that moment holding up his hands in surrender to law enforcement. Under the authority discussed above, such use of deadly force was a clear violation of the Constitution. Deputy Martin therefore is not entitled to qualified immunity, and the Court must deny Defendants’ Motion for Summary Judgment with respect to Plaintiff's § 1983 claim against him.
2. Deputies Motes, Emory, Ellison, and Davis
In addition to suing Deputy Martin, Plaintiff also brings claims of excessive force against Deputies Motes, Emory, Ellison, and Davis for their participation in these events. While it is undisputed that Deputy Martin was the only person to use any form of force against Mr. Bohanan—and Defendants seek dismissal of these claims for that reason alone—it is also well-established that an officer "who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force can be held liable for his nonfeasance." Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (quoting Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) ). Nevertheless, because Plaintiff has not shown that the other deputies had any opportunity to prevent Deputy Martin's use of deadly force, she cannot hold them legally responsible for his misconduct.
A police officer becomes liable for failing to intervene only when he or she "is in a position to intervene and fails to do so." Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000) (citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) ). And generally speaking, "[i]nstances of force that occur within seconds do not place officers in a realistic position to intervene." Johnson v. White, 725 F. App'x 868, 878 (11th Cir. 2018) (citing Hadley, 526 F.3d at 1331 ). Here, neither side disputes that only a handful of seconds elapsed between Deputy Martin's breach of the bedroom door and his decision to fire his gun at Mr. Bohanan. Indeed, according to Plaintiff's own description of the facts, Deputy Martin did not wait for the other officers to enter the room, nor did he give any warnings as to what he was about to do. Plaintiff has submitted no evidence demonstrating that the other deputies were in a position to stop Deputy Martin from using deadly force, nor has she even argued that they were. Consequently, Defendants are entitled to dismissal of Plaintiff's claims against Deputies Motes, Emory, Ellison, and Davis.
3. Sergeant Cook
Next, Plaintiff brings an excessive-force claim against Sergeant Cook. Notably, both sides have agreed that Sergeant Cook left the house at some point before his fellow officers breached the bedroom door, and thus he was not nearby when Deputy Martin shot Mr. Bohanan. The Court therefore finds that Sergeant Cook was not in a reasonable position to intervene and for that reason, as explained above, cannot be liable for failing to do so.
As a supervising officer, however, Sergeant Cook is subject to a broader range of liability than his subordinates. A supervisor will be liable under 42 U.S.C. § 1983 if a plaintiff can show that he or she "directly participated in the unconstitutional conduct or that a causal connection exists between the supervisor's actions and the alleged constitutional violation." Keith v. DeKalb Cty., Georgia, 749 F.3d 1034, 1047–48 (11th Cir. 2014) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) ).
"The necessary causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. Alternatively, the causal connection may be established when a supervisor's custom or policy ... result[s] in deliberate indifference to constitutional rights or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so."
Id. at 1048 (quoting Cottone, 326 F.3d at 1360 ). Ultimately, however, the standard by which a supervisor becomes accountable for constitutional violations of a subordinate is "extremely rigorous." Id. (internal quotation marks and citation omitted).
Here, the Court finds that Plaintiff has not met the high threshold for supervisory liability against Sergeant Cook. Apart from the present case, Plaintiff has not pointed to a single instance of excessive force that occurred under Sergeant Cook's watch, let alone a history of widespread abuse. She furthermore has not argued that Sergeant Cook maintained a policy or custom of deliberate indifference to suspects’ constitutional rights. And finally, she has not offered any evidence that Sergeant Cook directed Deputy Martin's unlawful actions, or that he knew they were likely to occur. At most, Plaintiff's brief only appears to suggest that Sergeant Cook neglected his supervisory duties by remaining outside the house as his subordinates were conducting a forced entry. (See Pl.’s Resp. at 14-15.) But that type of negligence is not enough to hold a supervising officer personally liable for another officer's excessive force. Defendants therefore are entitled to dismissal of this claim as well.
4. Paulding County
Finally, Plaintiff also seeks to hold Paulding County liable under § 1983 for Deputy Martin's constitutional violation. Defendants argue that this claim must fail because, under Georgia law, Paulding County has no authority over the Sheriff's Office or the Sheriff's deputies and is not responsible for their decisions. The Court agrees.
A county "is liable under [§] 1983 only for acts for which [the county] is actually responsible." Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (internal quotation marks and citation omitted). And as this Court has explained before:
"In Georgia, the sheriffs office is a separate, constitutionally created entity that is independent from the county. Ga. Const. art. IX, § 2, ¶ 1 (c)(1). Although the sheriff is designated as a "county officer," authority and control rather than labels govern the municipal liability analysis. Grech, 335 F.3d at 1332 ; see McMillian v. Monroe County, Ala., 520 U.S. 781, 786, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). The sheriff is not a county employee, and the county is precluded from controlling or affecting the sheriff's office or its personnel. Ga. Const. art. IX, § 2, ¶ 1 (c)(1); Grech, 335 F.3d at 1333 ; Board of Comm'rs of Randolph County v. Wilson, 260 Ga. 482, 396 S.E.2d 903 (1990). Thus, any actions taken by the Sheriff's Department cannot be attributed to [the] County for [§] 1983 purposes. [The] County cannot be held liable for the actions of a sheriff's office over which it has no control."
Bush v. Reeves, No. CIV.A.1:05-CV-1315-T, 2005 WL 3542880, at *2 (N.D. Ga.) (dismissing claims against Gwinnett County, Georgia). Paulding County therefore cannot be liable for the unconstitutional conduct of a police force that is entirely independent from it and not subject to its control. See Grech, 335 F.3d at 1347 ("In Georgia, a county has no authority and control over the sheriff's law enforcement function.").
Alternatively, even if Paulding County did have sufficient authority over the Sheriff's Office to be a proper defendant in this case, the Court finds that Plaintiff's claim would fail on its merits. To recover from a local government under § 1983, one must show that the local government itself "officially sanctioned or ordered" an unlawful act. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ). A plaintiff can establish this by identifying either (1) an officially adopted policy that explicitly authorizes a constitutional violation, or (2) an unofficial "custom or practice" of allowing such violations to occur. Grech, 335 F.3d at 1329 (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Here, Plaintiff does not contend that Paulding County had an official policy authorizing law enforcement to use deadly force against unresisting and unarmed arrestees. In fact, Plaintiff argues in her brief that Deputy Martin's actions actually violated the County's policies concerning the use deadly force. (See Pl.’s Resp. at 42.) She therefore must prove instead that Paulding County had an unofficial custom or practice of permitting the type of unlawful conduct that allegedly occurred in this case. Such a the "moving force [behind] the constitutional violation." Grech, 335 F.3d at 1330 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ).
Plaintiff contends that Paulding County has maintained an unofficial practice of allowing its police officers to simply "do[ ] whatever they want[ ] to do" when making arrests. (Pl.’s Resp. at 41.) This is shown, she argues, by the fact that "Paulding County offered no training to the Defendants to handle the situation they found themselves in on October 5, 2017," as well as by the fact that Deputy Martin "received no specific training regarding non-violent, barricaded persons." (Id. at 40-41.) According to Plaintiff, Paulding County's failure to properly prepare Deputy Martin for the situation he confronted in this case was the ultimate cause of Brandon Bohanan's death.
Training deficiencies alone, however, are not enough to prove that Paulding County was the "moving force" behind Deputy Martin's unconstitutional act. Rather, to hold a local government liable for an individual officer's actions, a plaintiff must show that custom or practice she has identified is so "longstanding and widespread" that it "is deemed authorized by the policymaking officials because they must have known about it but failed to stop it." Craig v. Floyd Cty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (quoting Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) ). Generally, this standard of proof requires the plaintiff to demonstrate "[a] pattern of similar constitutional violations." Id. (quoting Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) ). Here, Plaintiff has not pointed to any other incident in which Paulding County's law enforcement used unconstitutionally excessive force—let alone a widespread pattern of such misconduct. Nor is there evidence in the record suggesting that the County's policymaking officials had reason to know of the alleged gaps in its training programs. The Court therefore must find as a matter of law that Paulding County did not cause, and thus is not liable for, Deputy Martin's use of excessive force.
B. State Claims
In addition to her excessive-force claims under § 1983, Plaintiff also brings claims for battery and wrongful death under Georgia law. Defendants contend that they are each entitled to immunity from these state-law claims. For the following reasons, the Court finds that all of the Defendants, except Deputy Martin, are indeed immune from suit under Georgia law.
1. Official Immunity
With respect to Plaintiff's state-law claims against Deputy Martin and his fellow officers, Defendants claim official immunity. Georgia's doctrine of official immunity—much like qualified immunity under federal law—"offers public officers and employees limited protection from suit in their personal capacity." Cameron v. Lang, 274 Ga. 122, 123, 549 S.E.2d 341, 344 (2001) (citing Gilbert v. Richardson, 264 Ga. 744, 750, 452 S.E.2d 476, 481 (1994) ). This immunity flows directly from the Georgia Constitution, which provides that state officers shall not be personally liable for performing their discretionary duties unless they act with "actual malice" or "actual intent to cause injury." Ga. Const. art. I, § 2, ¶ IX.
The Georgia Constitution also allows state officers to be sued for "negligent performance of, or negligent failure to perform, their ministerial functions ...." Ga. Const. art. I, § 2, ¶ IX. But as discussed above in connection with Plaintiff's federal claims, the Parties agree that a police officer's decision to use force in making an arrest is a discretionary function, not a ministerial one.
Actual malice is a "demanding standard," requiring proof that an officer acted with "a deliberate intention to do a wrongful act." Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999) ). As the Eleventh Circuit has explained:
[A] jury can infer actual malice based on an officer's conduct. See Lagroon v. Lawson, 328 Ga.App. 614, 759 S.E.2d 878, 883 (2014). But unreasonable conduct does not support such an inference. See Bashir v. Rockdale Cty., 445 F.3d 1323, 1333 (11th Cir. 2006) ; Marshall v. Browning, 310 Ga.App. 64, 712 S.E.2d 71, 75 (2011) ; Anderson v. Cobb, 258 Ga.App. 159, 573 S.E.2d 417, 419 (2002). Even recklessly illegal conduct does not support an inference of actual malice. See Murphy v. Bajjani, 282 Ga. 197, 647 S.E.2d 54, 60 (2007) ; Daley v. Clark, 282 Ga.App. 235, 638 S.E.2d 376, 386 (2006).
Id. In short, the mere fact that a police officer's decisionmaking was "misguided" or even "reckless" is not enough to support a finding of actual malice. Id. (quoting Marshall, 310 Ga. App. at 69, 712 S.E.2d at 75 ).
Similarly, Georgia's courts have interpreted the phrase "actual intent to cause injury," as used in the Georgia Constitution, to mean "an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury." West v. Davis, 767 F.3d 1063, 1073 (11th Cir. 2014) (quoting Kidd v. Coates, 271 Ga. 33, 33, 518 S.E.2d 124, 125 (1999) ) (emphasis added). "Under this definition, an officer who, in the performance of his official duties, shoots another in self-defense is shielded from tort liability by the doctrine of official immunity." Kidd, 271 Ga. at 33, 518 S.E.2d at 125. If an officer shoots "intentionally and without justification," on the other hand, then he or she is considered to have acted solely with "intent to cause injury" and therefore can be sued for damages. Id. (citing Gardner v. Rogers, 224 Ga. App. 165, 169, 480 S.E.2d 217, 221 (1996) ).
In the case of Porter v. Massarelli, the Court of Appeals of Georgia held that a police officer was not entitled to summary judgment on the basis of official immunity because a factual dispute existed as to whether he "acted with justification" when he shot a driver during a traffic stop. 303 Ga. App. 91, 96, 692 S.E.2d 722, 726 (2010). The officer had testified that he fired his gun to protect himself because the driver had started to accelerate his car. Id., id. The driver, meanwhile, maintained that he did not pull forward until after he was shot. Id., id. Viewing this evidence in the light most favorable to the plaintiff, the court concluded that the driver's testimony raised a jury question as to whether the officer truly acted in self-defense, or instead with an "actual intent to cause injury." Id., id.
Similarly, in DeKalb Cty. v. Bailey, the Georgia Court of Appeals held that an officer was not entitled to official immunity because he lacked any justification for shooting an unarmed and fleeing suspect. 319 Ga. App. 278, 283, 736 S.E.2d 121, 126 (2012). There it was undisputed that the suspect was running away the officer, had not threatened law enforcement, and had not been seen holding a weapon. Id. at 282, 736 S.E.2d 121, id. at 125. For those reasons, the court found that the evidence did not support the officer's argument that he shot in self-defense, and thus he was not immune from suit. Id., id.
In the present case—as in Porter—factual disputes in the record preclude the Court from finding that Deputy Martin is entitled to official immunity as a matter of law. As discussed above in connection with Plaintiff's federal claims, the testimony of Plaintiff's witnesses could lead a reasonable jury to conclude that Deputy Martin lacked any justification to fire his gun at Brandon Bohanan in purported self-defense. And under Georgia law, if Deputy Martin shot without such a justification, official immunity does not shield him from suit. For these reasons, the Court must deny Defendants’ Motion for Summary Judgment with respect to Plaintiff's state-law claims against Deputy Martin.
Because Deputy Martin was the only person to use deadly force against Mr. Bohanan, however, the other officers are each immune from suit. Plaintiff has submitted no evidence suggesting that the other officers were somehow responsible for Deputy Martin's decision to shoot. She also has not shown that any of them was in a position to intervene on Mr. Bohanan's behalf. For those reasons, the Court finds that Plaintiff has failed to prove "actual malice" or "actual intent to cause injury" with respect to Deputy Motes, Deputy Emory, Deputy Ellison, Deputy Davis, or Sergeant Cook. These Defendants are therefore entitled to summary judgment on the basis of official immunity.
2. Sovereign Immunity
With respect to Plaintiff's state-law claims against Paulding County, Defendants claim sovereign immunity. "The State of Georgia, as a sovereign, is immune from suit absent an express waiver." Kinlocke v. Benton, 257 F. Supp. 3d 1368, 1377 (N.D. Ga. 2017) (citing Ga. Const. art. I, § 2, ¶ IX (e)). Georgia has extended its sovereign immunity to its counties. See O.C.G.A. § 36-1-4 ("A county is not liable to suit for any cause of action unless made so by statute."). This immunity "can be waived only by an Act of the [Georgia] General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of the waiver." Wellborn v. DeKalb Cty. Sch. Dist., 227 Ga. App. 377, 379, 489 S.E.2d 345, 347 (1997) (citing Ga. Const. art. I, § 2, ¶ IX (e)). And the burden of establishing such a waiver falls on "the party seeking to benefit from such the waiver." City of Atlanta v. Durham, 324 Ga. App. 563, 564, 751 S.E.2d 172, 174 (2013) (quoting Steinberg v. City of Atlanta, 213 Ga. App. 491, 493, 444 S.E.2d 873, 874 (1994) ).
Here, Plaintiff has not pointed to any Georgia statute that expressly waives Paulding County's sovereign immunity. Indeed, Plaintiff did not discuss her state-law claims against Paulding County at all in her response brief. (See generally Pl.’s Resp.) For this reason, the Court finds that Plaintiff has failed to meet her burden of proof, and Paulding County is therefore entitled to summary judgment with respect to these claims. See Kinlocke, 257 F. Supp. 3d at 1377 (dismissing state-law claims against DeKalb County, Georgia where the plaintiff failed to identify an applicable waiver of sovereign immunity).
IV. Conclusion
ACCORDINGLY, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary Judgment [73].
The Court DENIES the Motion with respect to Plaintiff's § 1983 claim and state-law claims against Deputy Martin. The Court GRANTS the Motion with respect to all claims against the remaining Defendants, and it therefore DISMISSES Defendant Jimmy Motes, Defendant Brooks Emory, Defendant Mike Ellison, Defendant Link Davis, Defendant Adam Cook, and Defendant Paulding County, Georgia from this case.
The Court ORDERS the Parties to file their proposed consolidated pretrial order WITHIN THIRTY (30) DAYS after the date of this Order. Unless the Court orders otherwise, all Motions in Limine are due BY NO LATER THAN FOURTEEN (14) DAYS prior to the date on which the trial of this case is scheduled to begin. The Court will not consider untimely Motions in Limine unless a party can show good cause for the late filing.
IT IS SO ORDERED, this the 17th day of August, 2020.