Opinion
CIVIL ACTION FILE No. 1:19-CV-03984-SCJ
2021-03-10
Iwoinakee Gebray HARRIS-BILLUPS, as Administrator of the Estate of Quintas Deshun Harris and on Behalf of Quamere Jadon Harris and Quamillieon Jaden Daniel, Surviving Children of Decedent, Plaintiff, v. Milele ANDERSON, Defendant.
Kenneth W. Muhammad, The Muhammad Firm, LLC, Duluth, GA, for Plaintiff. R. David Ware, Russell Alan Britt, Hall Booth Smith, P.C., Atlanta, GA, for Defendant.
Kenneth W. Muhammad, The Muhammad Firm, LLC, Duluth, GA, for Plaintiff.
R. David Ware, Russell Alan Britt, Hall Booth Smith, P.C., Atlanta, GA, for Defendant.
ORDER
STEVE C. JONES, UNITED STATES DISTRICT JUDGE This matter appears before the Court on Defendant's Motion for Summary Judgment (Doc. No. [23]). Plaintiff filed a response in opposition (Doc. No. [26]), to which Defendant replied (Doc. No. [28]). The Motion is now ripe for the Court's review.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
The Court derives the facts from the admitted portions of the parties’ statements of material facts and the Court's own review of the record and determination of what facts are material. See Doc. Nos. [23-8] (Defendant's Statement of Material Facts, "DSMF"); [26-9] (Plaintiff's Statement of Material Facts, "PSMF"); [26-8] (Plaintiff's Response to DSMF); [29] (Defendant's Response to PSMF). The Court resolved the parties’ objections to each other's facts as it reviewed the record. If a party admitted a fact in part, the Court includes the substance of the undisputed part. If a party denied a fact in whole or in part, the Court reviewed the record to determine if a dispute exists and if it is material. The Court excludes facts, or parts of facts, that are legal conclusions, immaterial, inadmissible at trial, or not supported by a citation to record evidence.
For example, Plaintiff includes a statement by Plaintiff's expert, Professor Gilbertson, who indicated that "Officer Anderson's last gunshot represents an unreasonable, unnecessary, and excessive use of deadly force ...." See PSMF ¶ 8. The Court disregards this statement because it is a legal conclusion, not a fact. See LR 56.1(B)(1), NDGa. The Court will instead consider such statements as part of Plaintiff's argument.
For example, Plaintiff states that Mr. Harris "was a 27-year old Navy veteran who was diagnosed with Posttraumatic Stress Disorder and Schizophrenia after returning from military service overseas." See PSMF ¶ 1. The Court disregards this statement because it is immaterial. See LR 56.1(B)(3)(c), NDGa.
A. Material Facts
This case concerns the death of Quintas Deshun Harris, whom Defendant Officer Milele Anderson fatally shot during a police encounter. On August 2, 2017, at approximately 11:33 p.m., Officer Anderson responded to a noise complaint in Dekalb County, Georgia. DSMF ¶ 1. Officer Roger Mason responded as the secondary officer and arrived at the same time as Officer Anderson. DSMF ¶ 2. As Officer Anderson parked her patrol vehicle perpendicular to an SUV, she observed Mr. Harris emerge from behind the SUV and approach her patrol vehicle. DSMF ¶ 3. While seated in her patrol vehicle with her seat belt on, Mr. Harris approached Officer Anderson's driver side door and held a handgun to her head, while making comments about "death" or "dying." DSMF ¶ 4. Officer Anderson drew her firearm, and Mr. Harris retreated approximately ten to fifteen feet from Officer Anderson's vehicle. Id.
Then, Mr. Harris ran toward Officer Mason's vehicle while pointing the handgun in Officer Mason's direction. DSMF ¶ 5. Officer Anderson called out to Mr. Harris in an attempt to distract him from Officer Mason, who was still seated in his vehicle. Id. Officer Mason was able to exit his vehicle, and then drew his firearm. DSMF ¶ 6. Officers Anderson and Mason made appeals to Mr. Harris, commanding him to drop his weapon, telling him to calm down, and advising him that this is not what he wanted to do. Id.
Officer Octavius Matthews then arrived in a marked patrol vehicle, and Mr. Harris turned his handgun toward Officer Matthews and approached his patrol vehicle. DSMF ¶ 7. Again, Officer Anderson called out to Mr. Harris in an effort to distract him and allow Officer Matthews to exit his vehicle. Id. The three officers continued to confront Mr. Harris for several minutes, commanding him to drop his handgun. DSMF ¶ 8. Mr. Harris did not comply and repeatedly pointed his handgun at each of the officers and at Mr. Harris's own head. Id. Mr. Harris made statements similar to "I'm gonna kill you" and "you gonna have to kill me." DSMF ¶ 9.
Mr. Harris started to enter Officer Anderson's patrol vehicle and told Officer Anderson that he could drive off in the patrol vehicle. DSMF ¶ 10. Officer Anderson advised Mr. Harris against doing this. Id. Mr. Harris then exited Officer Anderson's patrol vehicle and entered another parked vehicle, during which Officer Anderson took position on the passenger side of the vehicle and Officer Mason took position on the driver side. DSMF ¶ 11. As Mr. Harris entered the driver side of the parked vehicle, Officer Mason observed a gun hit the ground. DSMF ¶ 12. In response, Officer Mason holstered his firearm and drew his Taser, advising the other officers that Mr. Harris dropped his weapon. Id. Officer Mason then observed a second gun in Mr. Harris's hand and advised the other officers that Mr. Harris was in fact still armed. Id.
At this point, Officer Anderson manually activated her body camera, as she discovered it had not been activated automatically. DSMF ¶ 13. Officers Anderson and Matthews repositioned themselves to avoid crossfire. DSMF ¶ 14. Officer Anderson moved to the front of Mr. Harris's vehicle a few steps from the driver side front bumper and Officer Matthews moved within a few steps of the passenger side front bumper. Id. During the incident, the officers observed Mr. Harris continuing to state that he was going to kill them. DSMF ¶ 16. Mr. Harris pointed his gun directly at the officers and his own head multiple times, after which Mr. Harris focused his gun on Officer Mason. Id. During the first approximately seventy-one seconds from the time Officer Anderson activated her body camera, at least thirty-eight appeals, warnings, and commands were made by the officers, including: "Put the weapon down," "Relax," "Calm down," "Put the gun down," "Listen to me, if you want to be recognized, put your weapon down." DSMF ¶ 17.
Officer Anderson's body camera footage shows that at time stamp 00:06, Officer Anderson stated, "Ass should have been fuckin’ shot." PSMF ¶ 9. At time stamp 01:11, Mr. Harris fired his gun at Officer Mason. DSMF ¶ 18. Then, at time stamp 01:12–17, officers returned fire. DSMF ¶ 19. Mr. Harris exited the vehicle and staggered in the direction of Officer Mason at time stamp 01:17–19. DSMF ¶ 20. At time stamp 01:17–24, Officer Mason is nearby screaming repeatedly that he had been shot in the hand. DSMF ¶ 23. Officer Anderson continued to fire at Mr. Harris, causing him to fall to the ground. DSMF ¶ 20–21. At time stamp 01:20–24, Mr. Harris was on the ground with both hands up near his head. Doc. No. [23-4], 01:20–24. At timestamp 01:24, Mr. Harris is writhing on the ground and suddenly moves his arms down toward his torso, clutching his abdomen in pain. Id. Officer Anderson observed a gun on the ground near Mr. Harris. PSMF ¶ 23; DSMF ¶ 22. At time stamp 01:25, Officer Anderson fired the final shot at Mr. Harris. DSMF ¶ 24.
The Parties have differing statements of fact with regards to Mr. Harris's movements prior to the final gun shot. The Court did its own review of Officer Anderson's body camera footage to resolve the differing statements of fact.
The Parties disagree as to the distance between the handgun and Mr. Harris. Plaintiff contends that the gun is approximately four feet away from Mr. Harris, see PSMF ¶ 23, while Defendant argues that the evidence does not demonstrate the precise distance of the gun from Mr. Harris, other than the fact that the gun was within Mr. Harris's reach and the second gun was unaccounted for, see Doc. No. [29], ¶ 23.
Subsequently, Officer Anderson advised the communication center than an officer had been shot in the hand and that a suspect had been shot multiple times but was still alive. DSMF ¶ 25. Officer Anderson also requested Emergency Medical Services for Officer Mason and Mr. Harris. Id. As Officer Anderson and others continued to provide cover, Officer Montezz Gibson pulled Mr. Harris away from the gun lying on the ground near Mr. Harris, after which Officer Gibson handcuffed him. DSMF ¶ 26.
The Georgia Bureau of Investigation ("GBI") was contacted immediately and conducted an investigation thereafter. DSMF ¶ 27. After completion of the GBI and the DeKalb County District Attorney Office's investigations, the DeKalb County District Attorney "determined that there was no criminal conduct related to the actions of the [officers involved in the subject incident]," including Officer Anderson, and therefore, the District Attorney concluded that no criminal charges would be brought against the officers. DSMF ¶ 28. The DeKalb County Police Department Internal Review Board also conducted an independent investigation of the officers’ conduct. DSMF ¶ 29. The Internal Review Board consisted of seven senior level DeKalb County police officers, six of whom voted unanimously in finding that Officer Anderson's use of deadly force was justified. DSMF ¶ 30. Members of the Internal Review Board noted that Officer Anderson did not violate any state law or local policy, rule, or regulation and that she did a "great job." DSMF ¶ 31.
The GBI and DeKalb County District Attorney Office's conclusions were made pursuant to a different legal standard and are not binding on this Court.
Plaintiff responds to Defendant's characterization of the investigation as "independent" stating that the review board was comprised of only DeKalb County police officers with no civilian or independent participation. See Doc. No. [26-8], ¶ 29.
The seventh member of the Internal Review Board abstained from voting. Doc. No. [26-8], ¶ 30.
Plaintiff retained former full-time police officer and current tenured Professor of Criminal Justice, Gregory G. Gilbertson, to offer an expert opinion as to whether Officer Anderson's final shot was excessive and unreasonable. PSMF ¶ 6. Professor Gilbertson stated that Mr. Harris was "incapacitated when he falls to the ground after the second volley of gunfire." PSMF ¶ 7. Professor Gilbertson further opined that, "The video clearly represents the fact Officer Anderson moves towards Harris as he lay wounded and huddled upon the ground before firing the final round at close range." PSMF ¶ 8. Lastly, Professor Gilbertson found there to be a sufficient pause between the second volley of shots and the final shot for Officer Anderson to observe that Mr. Harris was "defeated by gunfire, had no weapon in his hand, is wounded and laying huddled on the ground." PSMF ¶ 11.
Defendant disputes the accuracy of this statement, arguing that Mr. Harris is seen moving his hands away from his head and moving off his right torso before Officer Anderson's final shot. See Doc. No. [29], ¶ 7.
Defendant disputes the accuracy of this statement. See supra note 4 and accompanying text; Doc. No. [29], ¶ 8.
Defendant again disputes the accuracy of this statement. See supra note 4 and accompanying text; Doc. No. [29], ¶ 9. Defendant further adds that Mr. Harris wielded a second gun after the first gun fell to the ground. Doc. No. [29] ¶ 8.
Officer Anderson retained Louis M. Dekmar, Chief of Police for the City of LaGrange, Georgia, who proffered expert opinions on the subject incident. DSMF ¶ 32. Chief Dekmar found that "after being shot, Harris continued to move towards Officer Mason, prompting Officer Anderson to fire another shot to stop the threat of danger created by Harris." DSMF ¶ 33. Chief Dekmar further stated, "Prior to Officer Anderson's final shot, Harris made an overt movement towards Officer Mason, in an area where Officer Anderson was aware there were two firearms, [and] she was challenged by darkness and shadows created by the illuminated parking lot ...." PSMF ¶ 3.
Plaintiff disputes the accuracy of this statement but does not dispute that it was made. See Doc. No. [26-8], ¶ 33.
In including this statement by Chief Dekmar, Plaintiff notes that the facts relied upon by the expert when reaching the opinion that the use of force was reasonable, involved events that occurred before Mr. Harris fell to the ground, with the language of this statement being the only exception. See PSMF, ¶ 21.
B. Complaint and Parties’ Summary Judgment Arguments
Plaintiff, as administrator of the decedent's estate and on behalf of the decedent's surviving children, filed this 42 U.S.C. § 1983 action on September 5, 2019, alleging violations of the decedent's constitutional rights guaranteed by the Eighth and Fourteenth Amendments. Doc. No. [1-1]. Plaintiff initially asserted claims of assault and battery and wrongful death against Defendant in both her individual and official capacities as a police officer with the DeKalb County Police Department, but Plaintiff filed an Amended Complaint against Defendant individually on September 23, 2019. Doc. No. [3]. Plaintiff does not challenge the first shots fired at the decedent. However, she alleges that Defendant unlawfully fired the last and fatal shot after the decedent was no longer a threat, that Defendant did so with malice, deliberate indifference and/or reckless, callous, and gross disregard for the decedent's rights. Id. at ¶ 10, 12–13. Plaintiff seeks punitive damages against Defendant. Id. at ¶ 14.
Defendant argues that she is entitled to summary judgment for three reasons: (1) Defendant is entitled to qualified immunity from Plaintiff's federal law excessive force claim because Defendant acted within her discretionary authority, Defendant did not violate a constitutional right, and the law was not clearly established at the time of the incident to provide Defendant with fair notice; (2) Defendant is entitled to official immunity from Plaintiff's state law assault and battery and wrongful death claims because Defendant's act was discretionary and performed without actual malice or intent to cause injury, and Defendant's wrongful death claim further fails as a matter of law because under Georgia law, officers cannot be held liable for wrongful death claims resulting from discretionary acts; and (3) Plaintiff is not entitled to punitive damages because punitive damages claims are derivative of the underlying claims and Plaintiff's underlying federal and state law claims fail, and even if any claim does survive, Plaintiff does not meet the standard for imposing punitive damages in this case. Doc. No. [23-1], pp. 10–24.
II. LEGAL STANDARD
A. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgement if the movant shows that there is no genuine dispute as to any material act and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party's burden can be discharged either by showing an absence of evidence to support an essential element of the nonmoving party's case or by showing that the nonmoving party will be unable to prove their case at trial. Celotex, 477 U.S. at 325, 106 S.Ct. 2548 ; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). In determining whether the moving party has met this burden, the court must consider the facts in the light most favorable to the nonmoving party. See Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005).
Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no "genuine [dispute] for trial" when the whole record could not lead a rational trier of fact to find for the nonmoving party. Id. All reasonable doubts, however, are resolved in the favor of the nonmoving party. Fitzpatrick, 2 F.3d at 1115.
B. Qualified Immunity
The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To be entitled to qualified immunity, a government official must first demonstrate that he was engaged in a "discretionary function" when he committed the alleged violations. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263–64 (11th Cir. 2004). If the government official makes this showing, the plaintiff then bears the burden to overcome qualified immunity. Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009). In order to defeat the government official's qualified immunity defense, the plaintiff must prove that (1) the official "violated her federal constitutional or statutory rights, and (2) that those rights were clearly established at the time the officer acted." Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008).
As the Eleventh Circuit noted in O'Rourke v. Hayes:
When, as here, qualified immunity is asserted in the context of a motion for summary judgment, we look at the evidence in the record, interpreted in the light most favorable to the plaintiff. Based on this evidence, we must determine
if there is a reasonable dispute of material fact over whether the defendant violated the plaintiff's clearly established constitutional rights.
378 F.3d 1201, 1206 (11th Cir. 2004). The Eleventh Circuit reviews de novo the grant of summary judgment on qualified immunity grounds, "drawing all inferences and viewing all of the evidence in a light most favorable to the nonmoving party." Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
C. Official Immunity
Under Georgia law, county law enforcement officers are entitled to official Immunity from suit and liability unless they "act with actual malice or an intent to injure when performing a discretionary act." Speight v. Griggs, 579 F. App'x 757, 759 (11th Cir. 2014) (quoting Roper v. Greenway, 294 Ga. 112, 113, 751 S.E.2d 351, 352 (Ga. 2013, and citing Ga. Const. art. I, § 2, para. 4 (d)); see also Gates v. Khokhar, 884 F.3d 1290, 1304 (11th Cir. 2018) ). For purposes of official immunity, actual malice "requires more than harboring bad feelings about another," Adams v. Hazelwood, 271 Ga. 414, 415, 520 S.E.2d 896, 898 (1999), and it does not include "implied malice," meaning "the reckless disregard for the rights or safety of others," Murphy v. Bajjani, 282 Ga. 197, 203, 647 S.E.2d 54, 60 (2007). Instead, actual malice constitutes "a deliberate intention to commit a wrongful or illegal act." Tittle v. Corso, 256 Ga. App. 859, 862, 569 S.E.2d 873, 876 (2002). This "may be accomplished with or without ill will and whether or not injury was intended." Adams, 271 Ga. at 415, 520 S.E.2d at 898.
III. ANALYSIS
A. Qualified Immunity
Defendant argues that she is entitled to qualified immunity from Plaintiff's federal excessive force claim because Defendant acted within her discretionary authority, Defendant did not violate a constitutional right, and the law was not clearly established at the time of the incident to provide Defendant with fair notice. Doc. No. [23-1], pp. 10–20.
First, Defendant contends that she acted within her discretionary authority because it is settled law that "[p]olice officers act within their discretionary authority when attempting to secure an armed suspect." Id. at 12 (citing Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009) ). Second, Defendant argues that she did not violate a constitutional right of the decedent. Doc. No. [23-1], p. 13. Specifically, Defendant argues that her actions meet the Fourth Amendment's "objective reasonableness standard" used to determine whether the use of force was excessive. Id. at p. 13 (quoting Penley v. Eslinger, 605 F.3d 843, 849–50 (11th Cir. 2010) (citing Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009) )). Third, Defendant contends that even if a constitutional right was violated, the law was not clearly established at the time of the incident so as to provide Defendant with fair warning. Doc. No. [23-1], p. 18. Defendant maintains that the clearly established law must have existed within a reasonable time before August 2, 2017, which is the date of the incident, Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003), and that it "must be ‘particularized’ to the facts of the case," White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ).
In response to Defendant's arguments, Plaintiff concedes that Defendant was performing a discretionary act in her encounter with the decedent. Thus, she does not dispute that the burden therefore shifts to Plaintiff to show Defendant is not entitled to qualified immunity. Doc. No. [26], p. 8. However, Plaintiff relies on Hunter v. City of Leeds, 941 F.3d 1265 (11th Cir. 2019) in arguing that Defendant violated a constitutional right and that the law was clearly established at the time of the incident. Doc. No. [26], at pp. 11–12. Plaintiff contends that although Defendant was justified in using deadly force in the first round of gunfire, the level of force that is reasonable can change during the course of a police encounter, and here, deadly force was no longer reasonable at the time of the Defendant's final gunshot. Id. at pp. 12–13 (citing Hunter, 941 F.3d at 1280 ).
The Court agrees with the Parties that Defendant was performing a discretionary act in her encounter with the decedent. In making this determination, the Court considers whether Defendant was "performing a legitimate job-related function ... through means that were within [her] power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). As Defendant correctly notes, police officers act within their discretionary authority when attempting to secure an armed suspect. Garczynski, 573 F.3d at 1166. Because it is undisputed that Defendant acted within her discretionary authority when attempting to secure the decedent, the burden shifts to Plaintiff to satisfy the remaining elements for a preclusion of qualified immunity. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002).
To satisfy this burden, Plaintiff must show that (1) Defendant violated a constitutional right, and (2) the constitutional right was clearly established at the time of the incident. Garczynski, 573 F.3d at 1166. Importantly, Plaintiff must satisfy both prongs of this test to overcome qualified immunity. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). When evaluating a defense of qualified immunity, the Court "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (citing Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ); see also Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011) (noting that "these two steps do not have to be analyzed sequentially; if the law was not clearly established, [a court] need not decide if the Defendants actually violated the Plaintiff's rights") (citing Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) ). "This order of procedure is designed to ‘spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.’ " Wilson, 526 U.S. at 609, 119 S.Ct. 1692 (quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ).
The Court finds that Defendant is entitled to qualified immunity because she did not violate a constitutional right. Plaintiff does not argue that Defendant was unreasonable in using deadly force in response to the decedent's shooting of an officer. Doc. No. [26], p. 2. Instead, Plaintiff puts forth an excessive force claim with regards to only the final shot fired by Defendant. Id. In making the determination of whether Defendant violated a constitutional right, the Court must use an objective reasonableness standard. Penley, 605 F.3d at 849–50 (citing Crenshaw, 556 F.3d at 1290 ). In doing so, the Court must "carefully balance ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests[ ] against the countervailing governmental interest at stake under the facts of the particular case.’ " Davidson v. City of Opelika, 675 F. App'x 955, 958 (11th Cir. 2017) (quoting Salvato v. Miley, 790 F.3d 1286, 1293 (11th Cir. 2015) ). This balancing test comprises of three considerations: (1) the severity of the crime at issue, (2) whether Plaintiff posed an immediate threat to Defendant or others, and (3) whether Plaintiff actively resisted arrest. Penley, 605 F.3d at 851.
As Defendant correctly notes, the Eleventh Circuit has found that even where the first and third factors are absent, the second factor may justify an entry of summary judgement for Defendant on an excessive force claim. See Davidson, 675 F. App'x at 958–60. Indeed, "[t]he government has a weighty interest in protecting members of the public and police officers from the threat of force." Penley, 605 F.3d at 851 (citing Garczynski, 573 F.3d at 1166 ). The Eleventh Circuit has further held that it is reasonable for a police officer to use deadly force when she has "probable cause to believe that [her] own life is in peril." Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005). Importantly, "[t]he only perspective that counts is that of a reasonable officer on the scene at the time the events unfolded." Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (quoting Garczynski, 573 F.3d at 1166 ). As the Eleventh Circuit noted in Crosby v. Monroe County:
As Defendant correctly points out, the standard for qualified immunity from a claim rooted in the Fourth Amendment requires only arguable probable cause, which is a much less stringent standard than probable cause. See Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) ("[B]ecause only arguable probable cause is required, the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed").
[i]n making an excessive force inquiry, we are not to view the matter as judges from the comfort and safety of our chambers, fearful of nothing more threatening than the occasional paper cut as we read a cold record accounting of what turned out to be the facts. 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.
394 F.3d 1328, 1333–34 (11th Cir. 2004). Therefore, this excessive force inquiry "must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ; see also Plumhoff v. Rickard, 572 U.S. 765, 775, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ; Jean-Baptiste, 627 F.3d at 820–21.
Given this framework and viewing all of the evidence in a light most favorable to the nonmoving party, the Court agrees with Defendant that her actions did not constitute excessive force. The Court finds that, given the totality of the circumstances, it was objectively reasonable for her to believe that the decedent still posed an immediate threat to her and others during the seconds before the final shot.
Upon the decedent's arrival at the scene, he approached Defendant and held a handgun to her head. DSMF ¶ 4. The decedent pointed his gun directly at several of the officers and himself throughout the encounter while making threats, despite numerous appeals, warnings, and commands made by the officers to the decedent to drop his handgun. DSMF ¶ 16–17. The decedent fired his gun at Officer Mason at time stamp 01:11, at which time officers returned fire. DSMF ¶ 18–19. The decedent appeared to stagger in Officer Mason's direction, and then fell to the ground as Defendant continued to fire at the decedent. DSMF ¶ 20–21. At time stamp 01:24, the decedent is writhing on the ground and suddenly moves his arms down toward his torso. Doc. No. [23-4], 01:24. During this moment, Defendant observed a gun on the ground near the decedent and did not know of the second gun's location, which was spotted earlier on in the encounter. PSMF ¶ 23; DSMF ¶ 22. One second later, at time frame 01:25, Defendant fired the final shot at the decedent. DSMF ¶ 24.
Importantly, there were a mere fourteen seconds from the time the decedent first fired his gun at Officer Mason to the time Defendant fired the final shot at the decedent. DSMF ¶ 24. As Defendant points out, Defendant was not "required to wait and see what might happen if [s]he allowed [the decedent] to advance further." Martinez v. City of Pembroke Pines, 648 F. App'x 888, 894 (11th Cir. 2016) (citing Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) ). Indeed, "the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect." Id.
In arguing that the decedent no longer posed a threat at the time Defendant fired the final shot, Plaintiff lays out seven contentions. First, Plaintiff points to a "freeze frame photograph" of the decedent from the one second prior to Defendant's final shot in an attempt to show that the decedent was on the ground, unable to stand up, with no gun in his hand. Doc. No. [26], p. 14. However, the Court agrees with Defendant that this single frame fails to account for the rapidly evolving events and the sudden movement of the decedent's arms down toward his torso, which Defendant could have reasonably believed to be the decedent reaching for a gun. Doc. No. [23-4], 01:24. Indeed, Defendant observed a gun on the ground near the decedent, with no knowledge of the second gun's location. PSMF ¶ 23; DSMF ¶ 22. Therefore, Plaintiff's argument fails to "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.
Second, Plaintiff argues that, after striking the decedent with a second volley of three shots, Defendant repositioned herself closer to the decedent "in a manner consistent with someone not trying to seek cover and conceal." Doc. No. [26], p. 14. Again, the Court agrees with Defendant that this argument ignores the circumstances of the incident—Officer Mason was shot and injured just seconds earlier, and Defendant moved to a position between the decedent and Officer Mason to cover and protect the injured officer. Doc. No. [23-4], 01:22–26. To suggest that Defendant should seek cover overlooks the fact that Officer Mason would be left injured and vulnerable to further gunshots.
Third, Plaintiff points to Defendant's statement that the decedent's "ass should have been fuckin’ shot," PSMF ¶ 9, to contend that Defendant had a "troubling attitude or predisposition" towards the decedent. Doc. No. [26], p. 14. However, this statement is not relevant to whether the decedent was still a threat at the time of the final shot, and moreover, Defendant made this comment prior to the decedent's firing of the first gunshot. PSMF ¶ 9; DSMF ¶ 18. Even if the statement were relevant to the ultimate issue before the Court, as Defendant points out, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force[.]" Graham, 490 U.S. at 397, 109 S.Ct. 1865 (1989). Thus, Defendant's comment regarding the decedent is not relevant to the excessive force inquiry.
Fourth, Plaintiff states that none of the other officers discharged their firearms after the decedent went to the ground, supporting her argument that the decedent no longer posed a threat. Doc. No. [26], p. 15. The Court agrees with Defendant that this argument misapplies the objective reasonableness standard, which requires the Court to "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." Crosby, 394 F.3d at 1333–34. Officer Mason was injured and therefore unable to shoot, and Defendant was in the best position to protect Officer Mason and take reasonable action in light of the circumstances. The standard here is not "whether the defendant officer took action similar to that of other officers at the scene," but rather, "whether a reasonable officer in [Defendant's] shoes would have believed that [the decedent] was gravely dangerous." Penley, 605 F.3d at 852.
Fifth, Plaintiff contends that Defendant had sufficient time to fully assess the threat in the time between the second volley of shots and Defendant's last shot. Doc. No. [26], p. 15. Again, the Court agrees with Defendant that this argument fails to take into account the information Defendant possessed at the time of the incident—namely, the decedent's failure to heed the officers’ numerous commands, the decedent's threats and gun motions towards the officers, the decedent's shot at Officer Mason, the presence of one gun near the decedent on the ground and a second gun not in sight, and the decedent's sudden movement of his arms towards his torso in the seconds before Defendant fired the final shot. Contrary to what Plaintiff is suggesting, "the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect." Martinez, 648 F. App'x at 894 (citing Long, 508 F.3d at 581 ).
Sixth, Plaintiff argues that the decedent was not reaching for, and not near, the weapon on the ground. Again, this argument fails to account for the second gun, which was not in sight, and it ignores the surrounding circumstances that form Defendant's objectively reasonable belief that the decedent was still a threat when he made a sudden movement with his arms in the moment before the final shot was fired.
Seventh and finally, Plaintiff disputes the facts concerning the decedent's movements before the final gunshot. As aforementioned, the Court has resolved these facts through a review of the body camera footage and found that, in the seconds before the final shot was fired, the decedent was writhing on the ground and suddenly moved his arms down toward his torso. Doc. No. [23-4], 01:20–24. Again, Defendant was not required "to wait to see what might happen" as the decedent made a sudden movement in a rapidly evolving situation with one officer already injured. Martinez, 648 F. App'x at 894 (citing Long, 508 F.3d at 581 ).
Plaintiff further relies heavily on Hunter v. City of Leeds in attempt to satisfy Plaintiff's burden of proving both prongs of the qualified immunity analysis. 941 F.3d 1265 (11th Cir. 2019). Because the facts of Hunter are distinguishable from the present case, Plaintiff's reliance on that case is insufficient to meet her burden.
In Hunter, officers responded to a 911 dispatch of a reported child hostage at gun point with shots fired. Upon the officers’ arrival, the plaintiff suspect drove off and led the officers on a vehicle chase. Id. at 1271–72. The plaintiff then parked his vehicle and remained seated in the vehicle. Id. at 1272. While in his vehicle, the plaintiff failed to respond to officer commands to show his hands, and the plaintiff then pointed a gun at an officer while opening the vehicle door, which led to shots fired at the plaintiff. Id. The shots caused the plaintiff to recoil into his vehicle, after which he reached back out for the door. Id. The plaintiff claimed that he then dropped the gun through the vehicle's open door before the officer fired a second round of shots without warning. Id. Therefore, the Eleventh Circuit upheld the District Court's denial of the officer's motion for summary judgment, first stating that the officer "did not violate [the plaintiff's] Fourth Amendment rights when he fired his first round of shots at [the plaintiff]." Id. at 1279. However, the court then found that, "[a]ccepting the evidence in the light most favorable to [the plaintiff], a reasonable jury could find that [the plaintiff] no longer posed a threat of serious physical harm to [the officer] when [the officer] fired his second round of shots at [the plaintiff]." Id. at 1280. In coming to this determination, the Eleventh Circuit pointed to facts showing that the plaintiff recoiled back into his vehicle, complied with the officer's commands to drop his weapon, and dropped his gun through the opening of the car door. Id. Therefore, the court found that "a reasonable jury could find that [the officer's] continued use of deadly force was no longer proportionate to the danger presented, and thus, his second round of shots constituted excessive force in violation of the Fourth Amendment." Id.
The facts of Hunter are immediately distinguishable from the facts of this case. Unlike in Hunter, the decedent here failed to comply with any officer commands. Moreover, although the decedent fell to the ground, he remained an immediate threat to the officers and others. There was a gun on the ground near the decedent and a second gun unaccounted for, and whereas in Hunter, the suspect dropped his gun outside of the vehicle while he recoiled back inside of the vehicle. Here, the decedent here was not in such a secure position away from the gun so as to no longer pose a threat to the officers or others. With the information Defendant possessed of the events that unfolded at the incident, it was objectively reasonable for Defendant to believe that the decedent was reaching for a gun when he suddenly moved his arms towards his torso. Moreover, as Defendant points out, the second gun was not in sight during the seconds the decedent made a sudden movement, making it reasonable for Defendant to believe that the decedent was also within reach of a second gun. In short, the facts of Hunter are distinguishable from this case, and therefore the Court concludes that Defendant did not violate a constitutional right in her "split-second judgment[ ]" to fire the final shot in a "tense, uncertain, and rapidly evolving" situation. See Graham, 490 U.S. at 396–97, 109 S.Ct. 1865.
In arguing that Hunter’s facts are similar to those of this case, Plaintiff includes a block quotation of a string citation provided by the Eleventh Circuit in Felio v. Hyatt, 639 F. App'x 604 (11th Cir. 2016). These cases are likewise distinguishable from the facts in this case. The case of Salvato v. Miley involved a suspect "yelling and cussing at passing cars," and the suspect had no weapons and complied with a command to get down on the ground. 790 F.3d 1286, 1290 (11th Cir. 2015). The case of Edwards v. Shanley did not even involve a police shooting; rather, it involved a K-9 dog biting the suspect's leg. 666 F.3d 1289, 1293 (11th Cir. 2012). In Gilmere v. City of Atlanta, Ga., an unarmed, intoxicated suspect was beaten and shot by officers "with little or no provocation" by the suspect, and "the blows were not delivered in a good faith effort to control [the suspect]." 774 F.2d 1495, 1501 (11th Cir. 1985). Lastly, in Perez v. Suszcynski, the suspect was shot in the back while "compliant and prostrate on his stomach, with his hands behind his back." 809 F.3d 1213, 1217 (11th Cir. 2016). There, although the suspect had a gun in his waistband, an officer was able to remove the gun and throw it out of the suspect's reach before shooting. Id.
Given the series of events that unfolded from the perspective of Defendant at the scene of the incident, it was objectively reasonable for Defendant to believe that the decedent still posed a threat at the time of the final shot. "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, whether to the officer or to others," use of deadly force does not constitute a constitutional violation. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ; see also Clark v. City of Atlanta, 544 F. App'x 848, 856 (11th Cir. 2013) (stating that for qualified immunity to apply, "an officer need only have arguable probable cause" to employ deadly force) (quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002) ); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (11th Cir. 2003) (stating that the Constitution "permit[s] the use of deadly force against a suspect who poses not merely an escape risk ..., but also an imminent threat of danger to a police officer or others"). Notably, a police officer may continue to use deadly force until the suspect is "fully secured." Clark, 544 F. App'x at 856 (holding that the police officer "acted reasonably in continuing to shoot at [the suspect] until the threat of serious physical harm was eliminated and [the suspect] was fully secured") (quoting Crenshaw, 556 F.3d at 1293 ); see also Jean-Baptiste, 627 F.3d at 821 ("Until [the officer] verified that [the suspect] was disarmed, [the officer] had ‘no reason to trust that [the suspect] would not suddenly attempt to do him harm’ ") (quoting Crenshaw, 556 F.3d at 1293 ).
Having found no constitutional violation, the Court need not reach the second prong of the qualified immunity analysis. Accordingly, Defendant is entitled to qualified immunity, and summary judgment is appropriate.
Although the Court need not analyze the second prong of the qualified immunity analysis, Wilson, 526 U.S. at 609, 119 S.Ct. 1692, even if Plaintiff were able to establish a constitutional violation, Plaintiff's sole reliance on Hunter v. City of Leeds, 941 F.3d 1265 (11th Cir. 2019) as established law is not sufficient to overcome qualified immunity. As Defendant points out, Hunter was decided on November 1, 2019, which is nearly two years after the subject incident occurred on August 2, 2017. DSMF ¶ 1. Therefore, Hunter was not "clearly established law" for purposes of providing Defendant with fair warning that her conduct would constitute a constitutional violation. As the Court alluded to earlier, see supra note 15, Plaintiff further fails to "particularize" any case law to the facts of the case at hand, leading the Court to conclude that Plaintiff similarly fails to meet the second prong required to overcome qualified immunity. See Kelly v. Curtis, 21 F.3d 1544, 1550 (11th Cir. 1994) (noting that a "plaintiff cannot rely on general, conclusory allegations or broad legal truisms to show that a right is clearly established"); see also White, 137 S. Ct. at 552 ("[T]he clearly established law must be ‘particularized’ to the facts of the case").
B. Official Immunity
As to official immunity, Plaintiff argues that Defendant's firing of the final shot was not justified and done with an intent to injure coupled with malice, precluding Defendant from asserting official immunity. Doc. No. [26], pp. 16–17. Because qualified immunity precludes Plaintiff's federal claims, the Court declines to exercise jurisdiction over the state law claims and need not reach the question of official immunity. See 28 U.S.C. § 1367(c)(3) (allowing the district courts to decline to exercise supplemental jurisdiction over state claims where it has dismissed all the underlying federal claims). Although this decision is discretionary, see Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1350 (11th Cir. 1998), the dismissal of state law claims is strongly encouraged where the federal claims are dismissed prior to trial. See Baggett v. First Nat'l Bank, 117 F.3d 1342, 1353 (11th Cir. 1997). Thus, Plaintiff's state law claims are dismissed without prejudice. Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) (noting state claims should be dismissed without prejudice so that the claims may be refiled in the appropriate state court).
IV. CONCLUSION
For the forgoing reasons, Defendant's Motion for Summary Judgment (Doc. No. [23]) is GRANTED . The pending motions at Doc. Nos. [30] and [34] are DENIED as MOOT . The Clerk is DIRECTED to enter judgment in favor of Defendant and to CLOSE THIS CASE .
IT IS SO ORDERED this 10th day of March, 2021.