No. 98-8980.United States Court of Appeals, Eleventh Circuit.
DECIDED March 17, 2000.
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Karen E. Woodward, Overtis Hicks Brantley, Damon Erik Elmore, Kimberly Lynette Miller, Rolesia Butler Dancy, June Delores Green, City of Atlanta Dept. of Law, Atlanta, GA, Clifford Harold Hardwick, Hardwick, Hardwick Associates, Roswell, GA, R. David Ware, Ware
Associates, Atlanta, GA, for Defendants-Appellants.
Appeals from the United States District Court for the Northern District of Georgia. (Nos. 97-00585-CV-RLV, 97-1351-CV-RLV), Robert L. Vining, Jr., Judge.
Before ANDERSON, Chief Judge, and COX and HULL, Circuit Judges.
HULL, Circuit Judge:
[1] These § 1983 civil rights actions allege that three Atlanta police officers conducted an illegal investigatory stop and used excessive force during that stop. This appeal is from the district court’s summary judgment order which held that the Defendant officers were not entitled to qualified immunity. After review, we affirm the district court’s denial of summary judgment to Defendants on Plaintiffs’ illegal stop claims but reverse the denial of summary judgment to Defendants on Plaintiffs’ excessive force claims. We also reverse the district court’s grant of summary judgment to Plaintiffs on Defendants’ qualified immunity defenses. I. FACTUAL BACKGROUND
[2] This case concerns a shooting incident involving Jerry Jackson, Quentin Wimbish, and Toddrick Williams (collectively the “Plaintiffs”) and Officers Sauls, Fields, and Pinckney (collectively the “Defendants”).[1] Although the parties’ versions of the shooting incident differ drastically, the summary judgment posture of this case requires us to consider first the events in the light most favorable to Plaintiffs. We then examine Defendants’ qualified immunity defenses.
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armed. Driving east on Bankhead Highway, Jackson was on his way to the Moto Cycle Shop at 441 Marietta Street to check on his motorcycle. Jackson left his motorcycle at the Shop for repairs and, that morning, spoke to the Shop’s owner about the estimated repair cost.
[5] That day, Defendants Sauls, Pinckney, and Fields, also African-American males, were operating undercover in plain clothes and were in an unmarked gray Pontiac 6000 traveling east on Bankhead Highway. As members of a Field Investigation Team (“Team”) of the Atlanta Police Department (“APD”), they were assigned to the 1995 APD Crime Suppression Task Force. The Task Force’s mission was to seek out street crimes on a broad and proactive basis.[2] Defendants were on their way to meet with their supervisor to receive their assignments for the day. Defendant Fields, the senior officer in the group, was driving the gray Pontiac 6000, was armed with a nine millimeter pistol, and was wearing a black cap, a gray plaid shirt, blue jeans, and boots. Defendant Sauls was in the front passenger seat, was armed with a nine millimeter pistol and a .38 caliber revolver, and was wearing a green sweatshirt, blue jeans, and boots. Defendant Pinckney was sitting in the back seat, was armed with a nine millimeter pistol, and was wearing earrings, a brown cap, a navy blue sweatshirt, blue jeans, and boots. [6] Each Defendant officer had served about one month in a plainclothes law enforcement capacity and did not have any specialized training beyond that received during the police academy basic training program. Prior to this shooting incident, some other Team members had expressed concern that Defendants were too aggressive. Additionally, Officer Fields had a history of complaints against him. Officers Sauls and Pinckney had been disciplined for abusing their authority and failing to conform to directives arising from an incident during which they forced third parties to the floor for half an hour.[3] [7] While the two Pontiacs were traveling down Bankhead Highway, Defendants’ gray Pontiac approached Plaintiffs’ blue Pontiac from behind. Defendants do not claim that Plaintiffs were driving erratically or unlawfully. Instead, Defendants assert that they drew closer to Plaintiffs’ blue Pontiac because they thought that its occupants might be fellow Team members. Defendants based this assumption on their knowledge that the Pontiac 6000 is a popular model of car for police undercover work. [8] Defendants claim that as they approached Plaintiffs’ car, the driver Jackson kept looking in the rearview mirror; however, this is disputed. All agree, however, that the officers’ gray Pontiac pulled along side Plaintiffs’ blue Pontiac. According to Defendants, this made the occupants of the blue Pontiac nervous and Defendants attributed this nervousness to their assumptions that the occupants recognized Defendants as police officers. Defendant Sauls claims that he saw one of the occupants nudge Jackson and mouth the words “Oh shit,” but Plaintiff Williams avers that there was no conversation in the blue Pontiac about the officers’ gray Pontiac. Although Defendant Pinckney claims that Plaintiff Wimbish stared at him, Wimbish testified only that he “looked back” at one of the occupants, presumably Pinckney, who had looked at him first. Defendants also claim that the occupants in the bluePage 1161
Pontiac looked around but tried not to make eye contact with Defendants.
[9] As Plaintiffs’ blue Pontiac continued east on Bankhead Highway and turned south onto Marietta Street toward the Moto Cycle Shop, Defendant Fields followed in the gray Pontiac and then drove in front of the blue Pontiac. Officer Sauls claims that it was at some point during his observation of the occupants of the blue Pontiac that he recalled that a Pontiac 6000 was an easy car to steal. Defendants did not recognize anyone in the blue Pontiac. No one in blue Pontiac recognized Defendants or assumed that Defendants were undercover police officers. By the time the two cars approached the Moto Cycle Shop, Defendant Fields’ gray Pontiac was in front of the blue Pontiac. According to Defendants, at some point they decided to move on because they realized that the occupants of the blue Pontiac were not fellow police officers. [10] B. The Parking Lot [11] While the officers’ car continued on, Jackson turned the blue Pontiac left into the parking lot of the Moto Cycle Shop. The parking lot was on the south side of the shop which faced west toward Marietta Street. Jackson parked next to a dumpster in the parking lot. The three Plaintiffs and Dean got out of their car and walked into the Moto Cycle Shop to check on Jackson’s motorcycle. Also present in the Shop were the owner Robert Lebus, and mechanics Tony Delly, Danny Jackson, Thomas Stearns, and Tony Thompson. [12] After realizing that Jackson’s blue Pontiac was no longer behind them, Officer Fields turned his gray Pontiac around and drove to the parking lot next to the Moto Cycle Shop. Defendants based their decision to turn around on a suspicion that the blue Pontiac had been stolen. Defendants aver that their suspicion was based on their observation of the alleged nervousness of the occupants, their knowledge that the Pontiac 6000 is an easy car to steal, and their assertion that the blue Pontiac made such an abrupt turn into the parking lot. However, Plaintiffs’ evidence shows that their blue Pontiac turned in a regular fashion and reveals no nervousness by its occupants. [13] After reaching the Moto Cycle Shop’s parking lot, Officer Fields pulled his vehicle up on the sidewalk to the rear of Jackson’s car partially blocking its movement from the parking lot. Officer Sauls got out of the car and inspected the empty blue Pontiac. There was no physical evidence indicating that Jackson’s blue Pontiac had been stolen, such as a broken window or broken ignition, nor was the door ajar.[4] Officer Sauls also looked in the dumpster but did not find anything suspicious. Neither Sauls, Pinckney, nor Fields called into the APD dispatcher to advise of their stop, its purpose, or its location. The officers had no outside information that Jackson or any of his friends had committed any criminal acts or were about to commit any criminal acts. At some point, Officer Pinckney called in a registration check on the blue Pontiac’s license plate.[5]Page 1162
[14] C. The Moto Cycle Shop [15] Approximately one minute after Defendants arrived at the parking lot of the Moto Cycle Shop, there was a two-car wreck at a nearby intersection. The crash was loud enough to be heard by the people inside the Moto Cycle Shop and by other persons in the area. Plaintiffs, their friend Dean, and mechanic Delly had been looking at motorcycles, and, in response to the wreck, they walked outside onto the sidewalk in front of the Moto Cycle Shop. They looked toward the accident scene at the intersection of Marietta and Jones Streets, which was in the opposite direction of the parking lot, the two Pontiacs, and the Defendant officers. [16] After hearing the wreck, Defendants observed that some of the men exiting the Moto Cycle Shop appeared to be the men who had been in the blue Pontiac. According to Plaintiffs, the blue-jean-clad Defendants had their police badges concealed so that nothing visually identified them as police officers. With guns drawn, the three Defendants then approached the men outside and did not verbally identify themselves as police officers. Defendants yelled and cursed at everyone to get back into the Shop and lie down. Officer Sauls stood in the doorway facing the inside of the Shop. Officers Fields and Pinckney were behind Sauls with Fields on the right and Pinckney on the left.[6] While in the doorway, Defendants swept the Shop’s interior with their guns. [17] There is considerable testimony that at this point everybody in the Moto Cycle Shop thought that Defendants were armed robbers about to harm them because the Defendants yelled obscenities at them, screamed at them to get on the floor, and never identified themselves as police officers. Jackson, Wimbish, Williams, and mechanic Delly went to the floor as ordered. Plaintiffs’ friend Dean ran to the rear of the Shop. Mechanic Stearns ducked behind some motorcycles in the Shop. There was substantial confusion within the Shop. [18] D. The Shooting [19] Believing Defendants were armed robbers about to harm the Moto Shop’s occupants, mechanic Stearns, a Caucasian male, drew his nine millimeter handgun and fired a three-round burst at Officer Sauls. It is undisputed that Stearns shot first and was licensed to carry a concealed weapon. Stearns then retreated behind a row of motorcycles inside the Shop where he could not be seen from Marietta Street. Two of Stearns’s bullets hit Officer Sauls in the abdomen. Sauls began to retreat across Marietta Street and initially fired two or three shots toward the doorway of the Shop. According to Plaintiffs, Sauls fired his shots despite the fact that Stearns, the man with the gun, was no longer in view and only Jackson, Wimbish, Williams, and Delly lying on the floor could be seen from the street. Indeed, Stearns was never shot. Instead, one of Sauls’s shots hit Plaintiff Wimbish in the leg as he lay on the ground unarmed. Officer Sauls fired his remaining rounds toward the doorway while he was running north on Marietta. Sauls eventually collapsed up the street in a store front. [20] After the shooting erupted, Officers Pinckney and Fields moved to the south of the doorway closer to the parking lot and the two Pontiacs. Plaintiffs contend that Officer Pinckney initially was not aware that Sauls had been hit.[7] Pinckney stoodPage 1163
at the curb close to a telephone pole near the southwest corner of the shop. Plaintiff Jackson, who was lying closest to the door when the shooting erupted, attempted to crawl outside the shop. Seeing Officer Pinckney with his gun drawn, Jackson, unarmed, dropped to the ground with his face down. Pinckney was about thirteen feet from Jackson and fired twice toward him.[8] Pinckney’s bullets hit the sidewalk inches from Jackson’s head and ricocheted up, piercing Jackson in the upper right arm and base of the neck. Pinckney ran to the dumpster abutting the southwest corner of the Shop where he could still see Jackson.
[21] Officer Fields then approached Jackson, as Jackson attempted to crawl back into the Shop. Officer Fields pointed a gun at Jackson as though he was going to shoot him again, but he did not. It is undisputed that Officer Fields never fired his weapon, that only Pinckney’s bullets hit Jackson, and that Jackson died at the scene as a result of injuries from Pinckney’s bullets. According to Plaintiffs, Defendants never verbally or otherwise identified themselves as police officers during any of this gunfire. Other witnesses testified that Sauls and Fields pulled their police badges from underneath their shirts only after the shooting. [22] E. Post-Shooting Activity [23] Following the shooting, Officer Pinckney radioed to report the incident. He did not request back-up and did not report specifically that Officer Sauls had been hit. Instead, Pinckney reported that “I got one down,” which could have meant Jackson or Sauls. In this summary judgment posture, we must infer it meant Jackson. Also, immediately after the shooting, Lebus, the owner of the Shop, called 911 and stated: “Some [expletive deleted] guys came in here and just started popping rounds in.” Because Lebus did not identify the shooters as police officers, this circumstantially supports Plaintiffs’ testimony that Defendants never identified themselves as police officers. [24] Plaintiff Wimbish, shot in the leg and unarmed, was placed under arrest for aggravated assault and was transferred to the hospital. Plaintiffs’ friend Dean, also unarmed, was arrested for aggravated assault. Although arriving at the scene after the shooting was over and the scene was taped off, George Jackson, an African-American male, was taken into custody and questioned. Stearns, a Caucasian male, fired the first shots but was not arrested. No weapons were found on Plaintiffs or anyone in the Shop except Stearns. [25] Subsequently APD’s Office of Professional Standards (“OPS”) investigated the shooting incident and initially recommended charging Officers Sauls and Pinckney with multiple work rule violations, including violations based on the fact that “there was not at this time period reasonable suspicion to make a[T]erry stop and frisk.” The initial findings also reported that Officers Sauls and Pinckney had not been truthful in their statements to OPS and the Homicide Division. However, OPS’s final recommendation was that only Officer Pinckney be charged and only with work rule violation 6.09, Use of Firearms.[9] This recommendation was accepted and Officer Pinckney was suspended for five days. The Fulton County District Attorney’s Office, the Federal Bureau of Investigation,Page 1164
and Georgia Bureau of Investigation investigated the shooting incident, but no criminal charges were filed against any officer.
II. PROCEDURAL HISTORY
[26] In these § 1983 civil actions, Plaintiffs claim that the Defendant officers violated their rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment by illegally stopping and seizing them at the Moto Cycle Shop and by employing excessive force during that stop. Plaintiffs also claim that Defendants used race as a basis for this stop, thereby violating their rights under the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs further assert state law claims.
III. STANDARD OF REVIEW
[28] The district court’s order addressing Defendants’ qualified immunity defenses to these § 1983 claims is an appealable interlocutory order. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (“[A] district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision’. . . .”); Jones v. Cannon, 174 F.3d 1271, 1280 (11th Cir. 1999). This Court reviews de novo the district court’s denial of qualified immunity. Macuba v. Deboer, 193 F.3d 1316, 1320
(11th Cir. 1999). For summary judgment purposes, the facts are viewed in the light most favorable to the nonmoving party. Jones, 174 F.3d at 1281.
IV. QUALIFIED IMMUNITY PRINCIPLES
[29] Qualified immunity shields a § 1983 defendant from liability for harms arising from discretionary acts,[11] as long as the discretionary acts do not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir.) (en banc), cert. denied, 522 U.S. 966, 118 S.Ct. 412, 139 L.Ed.2d 315
(1997). For an asserted right to be clearly established for purposes of qualified immunity, “the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that `what he is doing’
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violates federal law.” Lassiter v. Alabama A M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The burden of showing that an officer violated clearly established law falls on the plaintiff, and a plaintiff’s citation of general rules or abstract rights is insufficient to strip a § 1983 defendant of his qualified immunity. See Anderson, 483 U.S. at 639, 107 S.Ct. 3034; Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999); Walker v. Schwalbe, 112 F.3d 1127, 1132 (11th Cir. 1997). A reasonable officer’s awareness of the existence of an abstract right, such as a right to be free of excessive force or an investigatory stop without reasonable suspicion, does not equate to knowledge that his conduct infringes the right. “If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.” Pickens v. Hollowell, 59 F.3d 1203, 1206
(11th Cir. 1995) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)).
V. INVESTIGATORY STOP
[32] “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, ___ U.S. ___, 120 S.Ct. 673, 675, ___ L.Ed.2d ___ (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).[12] Furthermore, “[w]hile `reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Id. 120 S.Ct. at 675-76 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). A law enforcement official who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified
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immunity. When an officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had “arguable” reasonable suspicion to support an investigatory stop See Williamson v. Mills, 65 F.3d 155, 157 (11th Cir. 1995); Swint v. The City of Wadley, Alabama, 51 F.3d 988, 996 (11th Cir. 1995) Post v. City of Fort Lauderdale, 7 F.3d 1552, 1558 (11th Cir. 1993).
[33] A. Timing of the Stop [34] We first examine at what point during the encounter Plaintiffs were actually detained. As the Terry Court observed, “[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized’ that person.” Terry, 392 U.S. at 16, 88 S.Ct. 1868. It is only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure’ has occurred.” Id. at 19 n. 16, 88 S.Ct. 1868; see also Courson v. McMillian, 939 F.2d 1479, 1488(11th Cir. 1991). Plaintiffs and Dean freely exited their blue Pontiac and walked into the Moto Cycle Shop. Officer Fields’s positioning the gray Pontiac to impede the movement of the unoccupied blue Pontiac did not “seize” the Plaintiffs. Instead, the stop here did not take place until the three police officers, with guns pointed, ordered with profanity that Plaintiffs lie on the floor. Therefore, we focus on the constitutionality of that action by the officers. [35] We recognize Defendants’ contention that Officer Sauls alone approached the Shop’s doorway and ordered Plaintiffs to lie on the ground, while Officer Fields chased Corey Dean and Officer Pinckney radioed in the license plate check. However, viewed in a light most favorable to Plaintiffs, the evidence shows that Officers Pinckney and Fields, with guns drawn, were immediately behind and to the left and right, respectively, of Officer Sauls when Sauls, with a gun drawn, approached Plaintiffs. Thus, we must view the evidence as showing that all three officers acted in concert in brandishing their weapons, ordering Plaintiffs to the ground, and conducting this investigatory stop. The next question is whether they possessed arguable reasonable suspicion for their stop. [36] B. Arguable Reasonable Suspicion [37] Whether arguable reasonable suspicion existed for Defendants’ investigatory stop depends on whose version of events a jury believes. Plaintiffs’ version, if credited, shows no arguable reasonable suspicion. According to their evidence, Plaintiffs traveled from Jackson’s home to the Moto Cycle Shop, obeyed all traffic laws, acted normally without any nervousness, turned into the parking lot because they reached their destination, parked their car in a normal manner with all doors completely shut, entered a business expecting them, heard a loud crash, came out to look at the accident, were approached by three unidentified, gun-toting, blue-jean clad strangers yelling obscenities and ordering them to get on the ground. Under Plaintiffs’ version, Dean ran only after the three strangers drew their weapons and ordered, with profanity, that everyone lie down. Indeed, the Shop’s occupants believed that the strangers were armed robbers about to harm them. If a jury were to credit Plaintiffs’ evidence, then Defendants had no basis for their actions. Thus, a reasonable police officer would have known that he lacked reasonable suspicion for stopping Plaintiffs and that he was violating clearly established law in doing so. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) United States v. Smith, 799 F.2d 704, 707 (11th Cir. 1986). Therefore, the district court correctly denied Defendants’ motions for summary judgment on their qualified immunity defenses to Plaintiffs’ illegal stop claims.[13]
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[38] C. Plaintiffs’ Summary Judgment Motion [39] This case is unusual in that Plaintiffs filed their own joint motion for summary judgment addressing qualified immunity. In addition to denying Defendants’ motions, the district court granted Plaintiffs’ motion, in effect striking Defendants’ qualified immunity defenses as a matter of law. The district court, however, erred in doing so because Defendants’ different sequence of events, if credited by a jury, clearly establishes arguable reasonable suspicion for the stop here and would entitle Defendants to qualified immunity on Plaintiffs’ illegal stop claims. See Wardlow, 120 S.Ct. at 675-76.[14] [40] In their testimony, Defendants explain why they followed and drew close to Plaintiffs’ blue Pontiac, and how Defendants thought certain occupants recognized them as being police officers, looked nervous, and refused to make eye contact with the officers. After pulling ahead in traffic, Defendants were watching through the rearview mirror and saw Plaintiffs’ blue Pontiac appear to take evasive action by turning abruptly into a side street. The Defendants doubled back and found the blue Pontiac in a parking lot. To them the blue Pontiac had the look of a stolen car rapidly abandoned because a door was ajar with an item of clothing hanging outside. [41] The Defendants further aver that their police badges were visible on the outside of their clothing, that only Sauls approached the Plaintiffs, that Fields and Pinckney remained in the parking lot, that Sauls identified himself as a police officer, that Dean then fled, and that only then did Sauls, fearing for his safety, unholster his weapon and order Plaintiffs to the ground. Sauls also testified that he never pointed his gun at the men, but kept it at a 45-degree angle. According to Defendants, Sauls had re-holstered his weapon and was reaching down to pat down the men when Stearns shot. Only after being shot did Sauls unholster his weapon and return fire. Furthermore, when Stearns shot, Fields was chasing Dean, and Pinckney was radioing in the license plate of Plaintiffs’ car. Officers Fields and Pinckney did not approach the Shop and unholster their weapons until after Stearns shot. [42] Plaintiffs’ evidence contradicts this account of the shooting incident. Nonetheless, Defendants’ version of events, if credited by a jury, establishes arguable reasonable suspicion for the stop. Therefore, we find that the district court erred in granting summary judgment for Plaintiffs on Defendants’ qualified immunity defenses to Plaintiffs’ illegal stop claims. VI. DAMAGES AND CAUSATION
[43] Before leaving Plaintiffs’ illegal stop claims, we address a causation issue. Even if under Plaintiffs’ evidence a
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reasonable police officer would have known that he violated clearly established law in making this stop, Defendants claim that Jackson’s death and Wimbish’s injuries were caused by Stearn’s shooting and not their illegal stop, and thus Defendants are entitled to summary judgment on qualified immunity grounds for any damages arising from Jackson’s death and Wimbish’s injuries. However, we find that Plaintiffs’ evidence is sufficient to create jury issues regarding whether Defendants’ illegal stop proximately caused Jackson’s death and Wimbish’s injuries and the damages flowing therefrom.[15] In so finding, we are guided by certain common law tort principles of damages and causation which apply in this § 1983 context. See, e.g., Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305-06, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Although § 1983 addresses only constitutional torts, § 1983 defendants are, as in common law tort suits, responsible for the natural and foreseeable consequences of their actions. See Malley v. Briggs, 475 U.S. 335, 344-45 n. 7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (stating that “§ 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”) (citin Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492
(1961)); see also Carey v. Piphus, 435 U.S. 247, 255-59, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). For damages to be proximately caused by a constitutional tort, a plaintiff must show that, except for that constitutional tort, such injuries and damages would not have occurred and further that such injuries and damages were the reasonably foreseeable consequences of the tortious acts or omissions in issue.[16]
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Stearns’s three round burst was his effort to escape injury from armed robbers and was directly caused by Defendants’ illegal stop. Plaintiffs stress that Defendants’ illegal stop not only caused Stearns to shoot but also created the need for the officers to use deadly force in responding to Stearns and thus caused Jackson’s death and Wimbish’s injuries. Therefore, Plaintiffs argue, and we agree, that jury issues exist regarding whether, except for Defendants’ illegal stop, Stearns would not have shot, the officers would not have shot back, and Jackson’s death and Wimbish’s injuries would not have occurred.
[45] Plaintiffs further argue that their evidence also raises jury issues regarding foreseeability and whether Stearns’s shooting, the officers’ shooting back, and Jackson’s death and Wimbish’s injuries were natural and foreseeable consequences of the officers’ illegal stop. We first caution that a police officer cannot foresee all conduct occurring after a stop or arrest, even if illegal. For example, when a uniformed officer, or an undercover officer identifying himself as a policeman, draws his gun during an illegal stop or arrest, third party civilians and detained persons do not normally begin shooting. Thus, in those situations, an officer would not reasonably foresee a shooting in response to a stop or arrest, even if illegal. However, under Plaintiffs’ evidence in this case, a jury could find that it was reasonably foreseeable that Defendants’ dress and illegal stop of persons at this business would make Defendants appear to the Shop’s occupants as armed robbers about to harm them. Under Plaintiffs’ version of the events, a jury could further find that it was reasonably foreseeable that an illegal stop in this manner at a business might result in the discharge of firearms by the Shop’s occupants, the officers’ firing back, and injuries to the Shop’s occupants being illegally stopped. Thus, we find that Plaintiffs’ evidence is sufficient to create jury issues regarding whether, except for Defendants’ illegal stop, the damages from Jackson’s death and Wimbish’s injuries would not have occurred and regarding whether Jackson’s death and Wimbish’s injuries were reasonably foreseeable consequences of Defendants’ illegal stop.[17] Therefore, the district court properly denied Defendants summary judgment on their qualified immunity defenses to Plaintiffs’ illegal stop claims for these damages.VII. EXCESSIVE FORCE PRINCIPLES
[46] We next examine Plaintiffs’ claims based on excessive force. The Supreme Court has instructed that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure’ of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness’ standard.” Graham v. Connor, 490 U.S. 386. 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). It is well established that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396, 109 S.Ct. 1865. To determine whether the force used is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interest against
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the countervailing governmental interests at stake. See Id.; Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Crosby v. Paulk, 187 F.3d 1339, 1351 (11th Cir. 1999). Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), “its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”Graham, 490 U.S. at 396, 109 S.Ct. 1865.
[47] Therefore, “[u]se of force must be judged on a case-by-case basis `from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (quotin Graham, 490 U.S. at 396, 109 S.Ct. 1865). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. The reasonableness inquiry is also an objective one. “[T]he question is whether the officers’ actions are `objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”Id. at 397, 109 S.Ct. 1865; see Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Furthermore, this Court has concluded that “Fourth Amendment jurisprudence has staked no bright line for identifying force as excessive,” that “[t]he hazy border between permissible and forbidden force is marked by a multifactored, case-by-case balancing test,” and “[t]he test requires weighing of all the circumstances.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997).[18] [48] Utilizing these principles, we now examine Plaintiffs’ two separate legal theories for their excessive force claims. Plaintiffs first contend that any force was excessive because the stop was illegal. Alternatively, Plaintiffs assert that even if the stop was legal, Defendants still used excessive force during that stop. We discuss each theory in turn. VIII. EXCESSIVE FORCE DURING AN ILLEGAL STOP
[49] As their first theory, Plaintiffs assert that because there was no basis for the stop and no governmental interest at stake any use of force, however minimal,
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was more than reasonably necessary and excessive. Under this Circuit’s law, however, a claim that any force in an illegal stop or arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force claim. See Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995) (holding that a claim that any force during a false arrest is excessive is subsumed in the false arrest claim itself because damages for false arrest include damages for use of force to effect that false arrest).[19] However, as outlined below, a claim for excessive force during a legal stop or arrest is a discrete claim.
[50] Williamson `s rule makes sense because if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim. The correct analysis is that the excessive force claim is subsumed in the illegal stop or arrest claim, as recognized in Williamson, where a plaintiff contends the force was excessive because there was no basis for any force.[20] IX. EXCESSIVE FORCE DURING A LEGAL STOP
[51] As their second theory, Plaintiffs assert that even if the investigatory stop was legal, Defendants used more force than reasonably necessary to effect that stop. We examine first Defendants’ threat of force in drawing weapons and ordering Plaintiffs to lie on the ground and then Defendants’ deadly force.
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ground does not necessarily constitute excessive force during an investigatory stop. See Courson v. McMillian, 939 F.2d 1479 (11th Cir. 1991) (holding that a deputy did not use excessive force during an investigatory stop in requiring the female companion plaintiff, who was never arrested, and the two males, who were later arrested, to lie face down on the ground with a shotgun pointed at them).[21] Thus, if the stop was legal, then Plaintiffs have failed to show any excessive threat of force during that stop.
[54] Additionally, the facts the jury would have to find to support arguable reasonable suspicion and to make the stop legal likewise support the threat of force initially used by Defendants during that stop. For example, Defendants base their reasonable suspicion on their contention that Plaintiffs took evasive action in abruptly turning into a parking lot and abandoning their car and that Corey Dean ran when Sauls identified himself as a police officer. If this occurred before Sauls drew his weapon and ordered Plaintiffs to lie on the ground, then the officers’ threat of force was not excessive. [55] At a minimum, we find that Plaintiffs have not shown that a reasonable police officer, making this legal stop, would have known that drawing his gun and ordering Plaintiffs to lie on the ground violated Plaintiffs’ clearly established rights. Therefore, the district court erred in denying Defendants’ summary judgment motion on Plaintiffs’ claims that the officers’ threat of force during this stop, even if legal, was excessive. [56] B. Deadly Force [57] Plaintiffs further claim that Defendants’ use of deadly force during this stop, even if legal, was excessive. It is undisputed that Officers Sauls and Pinckney did not shoot until after citizen Stearns shot. Thus, the issue becomes whether Defendants’ shooting in response to Stearns’s shots was reasonable under the circumstances. [58] We begin with Officer Sauls’s use of deadly force. Under Plaintiffs’ version of the events, Officer Sauls was standing in the doorway of the Moto Cycle Shop and was struck in the abdomen by Stearns’s two bullets. Stearns then crouched down inside the Shop, but Sauls fired back in an effort to save his own life. The fact that Sauls hit Plaintiff Wimbish, lying on the floor in the Shop, and not Stearns, the man with the gun firing at Officer Sauls, does not negate the reasonableness of Officer Sauls’sPage 1173
response to this clearly life-threatening situation.[22]
Because it is undisputed that Stearns fired first and that Wimbish was in the same general area where the gunfire originated, we conclude that Sauls’s actions were objectively reasonable in light of having been shot and that Sauls is entitled to qualified immunity on Wimbish and Williams’s claims of excessive deadly force. We recognize that Jackson subsequently crawled outside of the shop and was struck by two bullets, but it is undisputed that Jackson was hit only by Pinckney’s bullets. Therefore, Sauls is also entitled to qualified immunity on Jackson’s claim of excessive deadly force.
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on Plaintiffs’ claims of excessive deadly force during a legal stop.
[62] Unlike Officers Sauls and Pinckney, Officer Fields never fired his weapon or employed deadly force. Plaintiffs claim, however, that Officer Fields should have prevented Pinckney’s use of deadly force. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). Since Pinckney is entitled to qualified immunity on his use of deadly force, there is no derivative claim against Fields. Moreover, in order for an officer to be liable for failing to stop another officer’s unconstitutional use of deadly force, the officer must be in a position to intervene. See Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (addressing officer’s liability in the context of failing to stop police brutality). We find that there is no evidence that Fields had time to prevent Pinckney’s response. Even in the light most favorable to Plaintiffs, this was a rapidly developing situation in which shots were fired and an officer was retreating while firing his weapon. Therefore, we find that Fields’s conduct was objectively reasonable and that he is entitled to qualified immunity on Plaintiffs’ claims of excessive deadly force. [63] Finally, since Defendants are entitled to summary judgment on Plaintiffs’ excessive force claims, the district court also erred in granting Plaintiffs’ motion for summary judgment on Defendants’ qualified immunity defenses to Plaintiffs’ excessive force claims.X. CONCLUSION
[64] In summary, we find (a) that the district court properly denied Defendants’ motions for summary judgment on their qualified immunity defenses to the Plaintiffs’ illegal stop claims, (b) that the district court erred in denying Defendants’ motions for summary judgment on their qualified immunity defenses to Plaintiffs’ excessive force claims, (c) that the district court erred in granting Plaintiffs’ motion for summary judgment on Defendants’ qualified immunity defenses to Plaintiffs’ illegal stop and excessive force claims, and (d) that the district court erred in failing to rule on Defendants’ motion for summary judgment on their qualified immunity defenses to Plaintiffs’ equal protection claims.
The mission is to be proactive and prevent crime from occurring by increased visibility of police, surveillance of areas where data suggests crimes may occur, and identifying persons likely involved in the commission of crimes.
At approximately 11:00 am on December 7, 1995, even though you were acting in the defense of a fellow officer, you still endangered the lives of innocent persons when you discharged your 9mm toward the front entrance of 441 Marietta Street.
(11th Cir. 1999); Mencer v. Hammonds, 134 F.3d 1066, 1069-71 (11th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 445, 142 L.Ed.2d 399
(1998); Johnson v. Clifton, 74 F.3d 1087, 1090-91 (11th Cir. 1996).
(11th Cir. 1997) (quoting Post, 7 F.3d at 1559).
The threat of force used here and in Courson stands in contrast to the actual force with physical contact in other cases. See Sheth v. Webster, 145 F.3d 1231 (11th Cir. 1998) (holding that defendant officer was not entitled to qualified immunity where officer arrested plaintiff without any arguable probable cause and used excessive force in pushing her against a soda machine, handcuffing her, and dragging her to a police car); Smith v. Mattox, 127 F.3d 1416, 1418-19
(11th Cir. 1997) (holding that if jury found that detainee had initially resisted arrest but then “docilely submitted to arrest” and laid down, the defendant officer’s then breaking his arm after he lay on the ground fell “within the slender category of cases in which the unlawfulness of the conduct is readily apparent even without clarifying caselaw”); Ortega v. Schramm, 922 F.2d 684 (11th Cir. 1991) (holding jury issue existed regarding excessive force where defendant officer shot padlock off a door without identifying himself as a police officer and then searched the premises, while another officer guarded plaintiff at gun point and then pushed down or kicked plaintiff in the back, and where after the search turned up no evidence, plaintiff was dragged out of the premises and put on the ground).
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