||AUDIO OF INCIDENT HELPS ELEVENTH CIRCUIT GRANT IMMUNITY TO DEPUTY IN SHOOTING

AUDIO OF INCIDENT HELPS ELEVENTH CIRCUIT GRANT IMMUNITY TO DEPUTY IN SHOOTING

On May 17, 2019, the Eleventh Circuit Court of Appeals decided Taffe v. Wengert[i], in which the court examined whether an officer was entitled to qualified immunity for shooting a robbery suspect.  The relevant facts of Taffe, taken directly from the case, are as follows:

In June 2014, two women called the police to report that two men had robbed them of their belongings and cellphones at gunpoint. Deputies from the Broward Sheriff’s Office, including Deputy Wengert, were dispatched to investigate. The callers described the robbers as two black males with low-cut hair and dark clothing. One suspect was 5’10” with a thin build and had a black semiautomatic weapon. The other suspect was 5’8″ with a heavy-set build. At least one suspect wore “bright sneakers.” A deputy asked dispatch if the victims noticed whether the suspects had any distinguishing characteristics. Dispatch responded, “[The victims are] advising no. She’s saying they could have had it but she was just too sidetracked looking at the weapon.”

Using a GPS application, deputies quickly tracked one of the stolen cellphones to Cypress Grove Apartments. Officers from the Lauderhill Police Department joined the search. Law enforcement tracked the stolen phone to the parking lot at the southern end of the apartment complex. When the deputies neared the parking lot, they encountered Thompson and a group of other men.

Thompson was a 26-year-old black male. He was approximately 5’8″ and weighed 210 pounds. That evening, Thompson was wearing primarily black clothing, although his shorts also had a white and orange pattern. His sneakers were black and orange, and he was wearing a hat with white lettering. Thompson was close to the stolen phone, based on the GPS data. When the officers reached the parking lot, Thompson quickly turned around and reentered the apartment building. Officers demanded Thompson stop, but Thompson did not respond. Deputies Wengert and Clark chased after Thompson into the building.

Deputy Wengert later described what happened inside. He testified that after entering the apartment hallway, Wengert saw Thompson in front of him with a firearm pointed in Wengert’s direction. Thompson fired what Wengert believed to be two shots, which missed Wengert. Thompson kept running down the hallway, keeping his firearm pointed behind him towards Wengert. Wengert fired and hit Thompson. Wengert told Thompson to drop his gun and continued to fire when Thompson did not comply. Wengert stopped firing when he saw that Thompson had dropped the gun and it was a safe distance away from him. An audio recording of the shooting is consistent with this testimony. The audio captures a distinct series of events: one or two shots, a call over the radio of “shots fired,” someone—presumably Wengert—shouting “put the gun down,” and then a barrage of gunfire. Wengert ultimately fired 25 rounds. Eight hit Thompson from behind. A ninth hit him while he was on the ground.

By the time the gunfire ceased, multiple law enforcement officers had converged upon the hallway. Officer Weeks from the Lauderhill Police Department—an agency wholly separate from the Broward Sheriff’s Office—was first to arrive at the scene. Officer Weeks testified that almost immediately after the shooting, he peered into the hallway, where he saw a gun next to Thompson. At the time Officer Weeks saw the gun next to Thompson, Wengert was still behind a wall in his position of cover, and no other deputy or officer had entered the hallway.

Deputy Yoder of the Broward Sheriff’s Office testified that he arrived at the scene twenty to thirty seconds after the gunfire ceased. Deputy Yoder testified that he approached Thompson, who was still alive and cursing at the officers. Deputy Yoder testified that as he approached, he saw a gun next to Thompson. Deputy Yoder then testified that he kicked the gun down the hallway and away from Thompson to ensure that he could not reach it.1 Deputy Yoder estimated that the gun slid twenty to twenty-five feet down the hallway.

Officers then handcuffed Thompson and called EMS. After the shooting, Wengert moved his car to the side of the building where the incident occurred. He eventually went back into the building. EMS transported Thompson to a local hospital, but he died that night from his injuries.

After the shooting, investigators recovered a gun—a Diamondback Luger—from the apartment hallway. A final investigative report placed the gun 51 feet from where Thompson’s body had come to rest. Investigators also recovered a casing from the Diamondback Luger. The gun tested positive for Thompson’s DNA.[ii]

Taffe, as administrator of Thompson’s estate, filed a lawsuit after the shooting.  Taffe alleged, among other things, that Deputy Wengert used excessive force under the Fourth Amendment when he shot Thompson and that Sheriff Israel had engaged in negligent hiring and supervision of the deputy.  Taffe also filed state law claims that will not be discussed in this article.  Deputy Wengert and Sheriff Israel filed motions for summary judgment and qualified immunity.  The district court denied the motions on the basis that there was a genuine issue of fact that must be decided by a jury.

Deputy Wengert and Sheriff Israel appealed the denial of summary judgment and qualified immunity to the Eleventh Circuit Court of Appeals.

On appeal, the Eleventh Circuit first noted that, at this stage of the litigation (motions for summary judgment and qualified immunity), the court is normally required to view the facts in a light most favorable to the plaintiff; in other words, they are required to credit the plaintiff’s version of events.  However, the court noted that

When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380. And “[w]here the record taken as a whole could not lead a rational trier of fact to find for the [plaintiff], there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).[iii] [emphasis added]

In other words, if the plaintiff puts forth a version of events and the evidence on record clearly contradicts the plaintiff’s version, such that a no reasonable jury could believe the plaintiff’s version, then the court is not required to follow that version of events.

The court also noted that, in order for a plaintiff to defeat the deputy’s motion for the qualified immunity, the plaintiff must show (1) that the deputy violated the constitution, and (2) that the law was clearly established such that any reasonable deputy in the same situation would have known that his conduct was unlawful.

Issue One:  Whether the deputy had probable cause to arrest Thompson?

The plaintiff first argued that the deputy did not have probable cause to arrest Thompson.  Regarding probable cause to arrest, the court noted

Probable cause depends on the totality of the circumstances and “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213, 244 n.13 (1983). Arresting officers are also entitled to qualified immunity if the officer had arguable probable cause for the arrest. See Ferraro, 284 F.3d at 1195. “Arguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the Defendant[ ] could have believed that probable cause existed to arrest.” Id. (internal quotation omitted).[iv]

In other words, the deputy is entitled to qualified immunity in a claim for unlawful warrantless arrest if the deputy has either actual probable cause or “arguable probable cause.”  Arguable probable exists simply if another reasonable officer could have believed that probable cause was present.  Additionally, the court examines the totality of the circumstance when determining probable cause, rather than looking at individual facts in isolation.

The court then applied the undisputed facts of the case to the rules above.  First, Thompson matched the physical description of a robbery suspect.  The description was a black male, 5’8” tall, with a heavy build.  Thompson was a black male, 5’8” tall, and 210 pounds.  Second, Thompson matched the clothing description of a suspect, who was described as wearing dark clothing and bright colored sneakers.  Thompson was wearing dark clothing and black and orange sneakers.  Third, Thompson was very close to the tracked GPS location of the stolen phone.  Based upon the totality of these facts, the court held that another reasonable officer in the same situation could have believed probable cause existed to arrest Thompson; as such, they held there was at least arguable probable cause.

Issue Two:  Whether the deputy used excessive force under the Fourth Amendment when he shot Thompson?

The plaintiff argued that the deputy used excessive force when he shot Thompson.  The court first noted the relevant law regarding the use of deadly force.  The court stated

Apprehending a suspect through the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. Tennessee v. Garner, 471 U.S. 1, 7 (1985). An officer may use deadly force against a person he reasonably perceives as posing an imminent threat of serious physical harm to an officer or others. Arrugueta, 415 F.3d at 1256; see also Hammett v. Paulding Cty., 875 F.3d 1036, 1048 (11th Cir. 2017) (explaining that an officer may use deadly force when he reasonably believes that his own life is in peril).[v] [emphasis added]

The plaintiff argued that the deputy’s use of deadly force was excessive because Thompson was unarmed the night of the shooting, thus, he could not have shot at the deputy, as the deputy testified.  In support of this argument, the plaintiff offered hearsay testimony from one person that did not witness the shooting and offered testimony from another person who said that Thompson was not armed earlier in the day.  The court stated that this testimony would not be admissible in court and thus declined to consider it.

The plaintiff also argued that Thompson did not fire the first shot at the deputy.  In support, the plaintiff offered testimony from some apartment residents and one officer who did not remember hearing one initial gunshot, but rather only a general barrage of gunfire.  In contrast, the deputy offered testimony from officers and an apartment resident that did remember hearing a defining initial shot prior to the general barrage of gunfire.  The court noted that this would typically create a material dispute of fact that would be sufficient to deny qualified immunity and send the case to a jury.  However, the court also considered the officer’s dash camera’s audio recording (the incident took place out of view of the camera) of the incident.  The court stated

Presented alone, these conflicting accounts would likely be sufficient to establish a genuine dispute that Thompson did not fire at Wengert. But the audio of the shooting resolves these conflicting accounts. The audio captures one or two initial shots, a call over the radio of “shots fired,” someone—presumably Wengert—shouting “put the gun down,” and then a barrage of gunfire.[vi] [emphasis added]

Thus, the Eleventh Circuit used the audio recording of the incident to corroborate the deputy’s version of events.  This underscores the importance of officers and deputies using either vehicle or body camera recording equipment, as here, it made the difference between the deputy receiving qualified immunity from suit, or having to face a civil trial for a jury to decide.

Issue Three:  Whether there was evidence that the deputy planted the gun after the shooting?

The plaintiff argued that, after the shooting, the deputy went back to his car, retrieved a gun and a shell casing, swiped the gun on Thompson’s hand to obtain his DNA, and then dropped it in the apartment hallway.  Further, the plaintiff alleged that the deputy delayed the EMS response to give him time to plant the gun.

The Eleventh Circuit examined the evidence and noted that every officer who saw the scene testified that they saw a gun next to near Thompson immediately after the shooting.  One deputy testified that immediately after the shooting he saw the gun near Thompson, and he kicked it 20-25 feet down a hallway to ensure that that Thompson could not reach it.  Additionally, the EMS records indicate that they were with Thompson about one minute after their arrival and began treating him approximately one minute later.  Further, an officer from a different law enforcement agency, who had never met the deputy that shot Thompson before that night, testified they did not see a gun being planted, would have considered it a crime if he did, and would have reported it accordingly.

The court then called the plaintiff’s allegation of planting the gun mere speculation without evidence, and stated that speculation cannot create a “genuine dispute of material fact” required to defeat qualified immunity.  The court stated

Ultimately, the allegation that Wengert or another deputy planted a gun in the hallway, is, at best, speculation. And “[a]lthough all reasonable inferences are to be drawn in favor of the nonmoving party, an inference based on speculation and conjecture is not reasonable.” Hammett, 875 F.3d at 1049 (internal quotation omitted).

To preclude summary judgment, Taffe must go beyond the allegations in her pleadings and put forward evidence that creates a genuine dispute of material fact. Liberty Lobby, 477 U.S. at 248. But “[a] genuine dispute requires more than some metaphysical doubt as to the material facts.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (per curiam) (internal quotation omitted). Instead, a genuine dispute arises when “the evidence is such that a reasonable jury could find for the nonmovant.” Hammett, 875 F.3d at 1049. Here, no reasonable jury could accept Taffe’s version of events based on the evidence in the record.[vii] [emphasis added]

The Eleventh Circuit then stated that the district court’s denial of qualified immunity was based on the plaintiff’s allegations and speculations, rather than actual evidence in the record.    The court stated that the evidence in the record indicates that Thompson was armed, he fired the first shot, and then the deputy returned fire.

Regarding the claim against the deputy, the Eleventh Circuit held

Officers may use deadly force against individuals they reasonably perceive pose an imminent threat of serious physical harm to the officers or others. Arrugueta, 415 F.3d at 1256. Under that standard, Wengert did not use excessive force. Wengert is thus entitled to qualified immunity and summary judgment on this claim.[viii] [emphasis added]

Issue Four:  Whether Sheriff Israel was entitled to summary judgment for the claim of negligent hiring and retention?

Regarding this issue, the court first noted the law regarding supervisory and governmental liability.  The court stated

Supervisory liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). And “to impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).[ix] [emphasis added]

Thus, the first element the plaintiff must establish to prove a claim of supervisory liability and/or municipal liability is that a constitutional violation occurred.  In this case, the Eleventh Circuit held that no constitutional violation occurred.  As such, this claim failed and sheriff is entitled to summary judgment.

Therefore, the Eleventh Circuit reversed the district court and granted summary judgment and qualified immunity in favor of the deputy and the sheriff in this case.

____________________________________________

Citations

[i] No. 18-10776 (11th Cir. Decided May 17, 2019 Unpublished)

[ii] Id. at 3-6

[iii] Id. at 8-9

[iv] Id. at 10

[v] Id. at 12

[vi] Id. at 14

[vii] Id. at 16

[viii] Id. at 17

[ix] Id. at 18-19

By |2020-01-20T17:13:21+00:00January 20th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.