On June 25, 2015, the Eleventh Circuit Court of Appeals decided Salvato v. Miley et al. [i], which serves as an excellent explanation of excessive force and failure to intervene in an excessive force incident as well as “ratification” as it pertains to potential liability for police and sheriff department’s that exonerate officers after a use of force that is later deemed excessive.  This article is a two part series.  Part I examines the excessive force and failure to interview issue; Part II examines the ratification theory of liability as it pertained to the Sheriff’s Department.  The relevant facts of Salvato, taken directly from the case, are as follows:

AThe Shooting

At night, Miley responded to reports of a disturbance along Southeast Sunset Harbor Road in Marion County, Florida, that a “Hispanic looking male with no shirt” was “yelling and cussing at passing cars.” Miley found Salvato along the side of the road. He was alone, walking in the road, shirtless, with nothing in his hands. Miley instructed Salvato to come to her car, and he complied. He did not have a weapon nor was he aggressive as he walked over. Without being asked, he put his hands on the hood of the car and spread his legs apart. Miley did not handcuff him because she did not perceive him to be a threat. Miley asked him if he had any weapons, and he replied that “all [he] had was bread,” and he pulled bread out of his pockets. Miley did not pat him down, but she saw that there were no weapons tucked inside his waistband. According to Miley, Salvato “was just talking irrationally” and stated “he wasn’t going to jail,” even though Miley never mentioned jail. He tried to walk away twice, but both times Miley placed her hand on his chest to keep him from leaving. Miley felt intimidated and called for expedited backup.

Deputy Brown arrived, and much of the remaining incident was recorded by his in-car dashboard camera. When Brown arrived, Salvato and Miley were talking to one another, arms-length apart, and there was no apparent confrontation. When Brown exited the vehicle he did not communicate with Miley but instead drew his gun and ordered Salvato to the ground. Salvato looked surprised but immediately complied. Brown pulled Salvato’s arms backwards. When Miley attempted to handcuff Salvato, he began to struggle. He rose to his knees, and both deputies attempted to wrestle him to the ground. They exchanged blows. Salvato broke free and stepped backwards, away from the officers. Brown then began to reach for something from his belt, and Salvato rushed towards Brown and hit him again. Miley attempted to intervene, and Salvato hit her in the head, knocking her down. Salvato again retreated, this time far enough that he was outside of the view of the camera, around 10 to 15 feet away from Miley. Miley drew her handgun and shot Salvato in the abdomen without giving him any verbal warning.

Although he had been shot, Salvato continued to walk on the road. Brown ordered Salvato to get on the ground, and when Salvato did not comply, Brown discharged his Taser into Salvato. Salvato fell to the ground on his back after the Taser discharged. Brown ordered Salvato to roll onto his stomach and discharged the Taser again when Salvato did not immediately comply. Brown ordered Salvato to show his hands, and Brown again discharged the Taser when Salvato did not comply. As Brown continued to discharge the Taser, Miley communicated for emergency medical assistance, retrieved her flashlight from the ground, and took Brown’s handcuffs to restrain Salvato. The internal memory of the Taser recorded 12 discharges during the incident. Brown discharged the Taser multiple times after Miley handcuffed Salvato. Brown later asserted that he did so to keep Salvato from reaching into his back pockets. Miley also kicked Salvato’s hand at one point when it appeared to her that he was trying to reach into his back pocket. Miley later testified that she was capable of telling Brown to stop discharging the Taser, but she did not because she “had just gone through a traumatic event, and [she] wasn’t really thinking about what [Brown] was doing.” At no point did either deputy check Salvato’s back pockets or search him. Salvato was unarmed.

By the time paramedics arrived, Salvato had died from internal bleeding. Miley suffered no injuries, and Brown sustained a minor eye injury. [ii]

Salvato’s estate later sued the deputies in their individual capacities (suits against them personally) for excessive force in violation of the Fourth Amendment and the Sheriff of Marion County in his official capacity (suit against the County) for ratifying the excessive force by failing to investigate the incident.  The district court denied qualified immunity for the deputies and denied summary judgment for the sheriff.  The case went to trial and the jury found the deputy’s committed excessive force, and the sheriff failed to investigate the incident which ratified the excessive force, thereby causing liability on the county.  Deputy Miley and the sheriff appealed to the Eleventh Circuit Court of Appeals.

The two issues examined in this article are whether Deputy Miley was entitled to qualified immunity from the suit for excessive force under the Fourth Amendment when she shot Salvato, and whether Deputy Miley was entitled to qualified immunity for the excessive force used by Deputy Brown because she failed to intervene in that use of excessive force.

Issue One:  Was it excessive force under the Fourth Amendment to shoot Salvato, without warning, after he fought with the deputies and while he was backing away from them?

Regarding reasonable and excessive force, the court first stated

We measure the quantum of force employed against these factors—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 actively resisted arrest or attempted to evade arrest by flight.” IdBut we must not “mechanical[ly] appl[y] . . . these factors.” Penley vEslinger, 605 F.3d 843, 850 (11th Cir. 2010). “[I]n the end we must still slosh our way through the factbound morass of ‘reasonableness.'” Scott vHarris, 550 U.S. 372, 383, 127 S. Ct. 1769, 1778 (2007). “[M]ore force is appropriate for a more serious offense and less force is appropriate for a less serious one.” Lee vFerraro, 284 F.3d 1188, 1198 (11th Cir. 2002). [iii]

The court further examined relevant rules related to the use of deadly force.  The court stated

The use of deadly force is “more likely reasonable if: the suspect poses an immediate threat of serious physical harm to officers or others; the suspect committed a crime involving the infliction or threatened infliction of serious harm, such that his being at large represents an inherent risk to the general public; and the officers either issued a warning or could not feasibly have done so before using deadly force.” Penley, 605 F.3d at 850 (citing Tennessee vGarner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 1701-02 (1985)). Also relevant is whether the officer “had [an] articulable basis to think [the suspect] was armed.” Garner, 471 U.S. at 20, 105 S. Ct. at 1706. [iv]

The court then examined facts that were relevant to the rules above.  It is noted that at this stage of immunity analysis, the court is required to view the facts in a light most favorable to the plaintiff so the facts may be in dispute by the deputies.  The relevant facts noted by the court were as follows.  First, the court observed that the original crime suspected by the officers was not serious, but was rather a man yelling and cussing at passing cars.  Second, the court noted that, while Salvato fought with the officers, at the time Deputy Miley shot him he was backing away, out of striking distance, and was not a threat.  Third, the court noted that there was sufficient time and distance for the deputy to warn Salvato before shooting him.  Fourth, the court noted that Deputy Miley did not have a reason to believe that Salvato was a danger to the general public and under Garner, deadly force would not have been authorized to prevent his escape.

The court also examined precedent from the Eleventh Circuit that was relevant to Salvato’s case.  The court stated

To be sure, Salvato “resisted arrest,” Oliver, 586 F.3d at 905, and struck the officers multiples times, but our en banc decision in Gilmere vCity of AtlantaGeorgia is instructive. 774 F.2d 1495 (11th Cir. 1985) (en banc). In Gilmere, the plaintiff was driving while intoxicated when he had a near collision with a van, and he then got into an argument with the driver of the van. Id. at 1496. The driver called the police and reported that the plaintiff had threatened him with a gun. Id. Police officers arrived at the plaintiff’s home and ordered him to their car for questioning. Id. at 1496-97. The plaintiff “initially put up some resistance by attempting to flee and then flailing his arms about, but these efforts were ineffectual because of his drunken condition.” Id. at 1497. The officers began escorting him out by force and “beat[] him about the head.” Id. As they neared the patrol car, the plaintiff “broke free of their hold. During the ensuing scuffle, [one of the officers] shot [the plaintiff] in the stomach and killed him.” Id. We held that the use of deadly force was not justified. Id. at 1502. To be sure, in Gilmere, the plaintiff was “small,” “intoxicated,” and he posed little threat to the officers. Id. But the officer shot the plaintiff during the scuffle, not as he was retreating. Id. And the crime the police officers were investigating—the plaintiff’s use of a firearm to threaten the van driver—was far more serious than Salvato’s alleged “yelling and cussing.” [v]

Based on the above precedent, and in light of the facts as applied to the previous stated legal principals, the court held that it was clearly established that Deputy Miley’s action in shooting Salvato was excessive under the Fourth Amendment.

Further, the court held that it was excessive force, after Salvato was shot and handcuffed, laying face down in the road, for her to kick his hand when he reached for his pocket.  Deputy Miley asserted that she merely used her foot to move his hand from his pocket but there was also evidence that she “kicked” his hand.  Deputy Miley testified that she did not consider Salvato a threat at that point because he was handcuffed and face down.  As such, the court held that it was excessive force under the Fourth Amendment.

Issue Two:  Did Deputy Miley fail to intervene in Deputy Brown’s use of excessive force with the Taser such that she was not entitled to qualified immunity for that use of force?

Again, we note that the court had to view the facts in a light most favorable to Salvato at this stage of the case.  Further, Deputy Miley did not argue that the use of the Taser was reasonable, rather she argued that it was not feasible for her to intervene.

The court first stated the rule regarding failure to intervene in excessive force as follows:

“[A]n 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 h[er] nonfeasance.” Fundiller vCity of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985). [vi]

Deputy Miley did not dispute that Deputy Brown’s use of the Taser was excessive force.  Rather, she asserted that, since she had just gone through a traumatic event, she was not completely aware that Brown was using excessive force.  However, the court noted that after that “traumatic event,” Deputy Miley called for medical assistance, retrieved her flashlight, used Brown’s handcuffs to restrain Salvato and kicked his hand.  Further, the court noted that video evidence showed that Miley was not dazed or unaware of her surroundings, and she admitted that she was capable of telling Brown to cease use of the Taser.

As such, the court held that Deputy Miley was aware enough of the events to recognize excessive force and capable of intervening by telling Brown to stop using the Taser.  Thus, she was not entitled to qualified immunity on this claim.

Therefore the Eleventh Circuit affirmed the denial of qualified immunity as it pertained to Deputy Miley’s alleged excessive force and failure to intervene.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 14-12840 (11th Cir. Decided June 5, 2015 Unpublished)

[ii] Id. at 4-7

[iii] Id. at 11

[iv] Id. at 12

[v] Id. at 13-14

[vi] Id. at 15

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