Haegele v. Judd

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHRISTINA HAEGELE,

Plaintiff,

v. Case No. 8:19-cv-2750-T-33CPT

GRADY JUDD, et al.,

Defendants.

______________________________/

ORDER

This matter comes before the Court upon consideration of

Defendants Sheriff Grady Judd, Reginald Green, and Joseph

Hicks’ Motion for Summary Judgment (Doc. # 99), filed on

October 21, 2020. Plaintiff Christina Haegele, individually

and as personal representative of the estate of Chance

Haegele, responded on November 18, 2020. (Doc. # 113). Sheriff

Judd, Green, and Hicks replied on December 3, 2020. (Doc. #

118). Haegele filed a sur-reply on December 15, 2021. (Doc.

# 126). The Motion is granted as set forth below.

I. Background

Chance Haegele was a twenty-year old man with mental

health issues, including bipolar disorder, schizophrenia, and

depression. (Doc. # 99-9 at 74:4-12). He had been

involuntarily committed under the Baker Act numerous times,

such that the Polk County Sheriff’s Office was aware of his

mental health issues. (Id. at 32:8-38:22; Doc. # 112-19; Doc.

# 112-20; Doc. # 112-21).

On the night of March 20, 2018, the date of the shooting,

Chance had been drinking alcohol he obtained from a neighbor.

(Doc. # 99-9 at 50:17-51:20). He made social media posts that

appeared suicidal in tone. (Doc. # 99-2 at 1-2). Specifically,

he posted on Facebook, “I do not want to live.” (Id. at 2).

He also sent through a social media application a photo of

himself with the following text: “Tell me why the fuck I

shouldn’t kill myself. Life is so fucking boring. I don’t

wanna work for the rest of my life. We are so irrelevant in

the grand scheme of the universe. I’m never gonna fall in

love again. Nobody wants a trailer boy.” (Id. at 1).

An acquaintance of Chance’s, Christian Morales, saw

Chance’s social media posts and called the Polk County

Sheriff’s Office. (Doc. # 99-3 at 7:12-8:9; Doc. # 99-4).

Morales informed the Sheriff’s Office operator that Chance

had said that he had killed his mother — Plaintiff Christina

Haegele (hereinafter, Haegele) — and wanted to kill himself.

(Doc. # 99-4 at 2:5-9, 5:8-13, 6:1-11; Doc. # 99-3 at 8:18-

9:11; Doc. # 99-5 at 1).

A Sheriff’s Office operator called Chance about what

Morales had said. (Doc. # 99-6). Chance denied having killed

his mother or being suicidal. (Id.). Rather, Chance told the

operator his apparently suicidal messages were about his

disappointment over his poor performance during a video game.

(Id.). The operator also spoke with Haegele to confirm she

was alive. (Id.). The operator called a second time to ask

Chance for his address. (Doc. # 99-7).

A Sheriff’s Office operator then dispatched Deputy Adrin

McGough to Chance’s address. (Doc. # 99-5 at 2). Other

deputies were dispatched to the scene as backup, including

Deputy Hicks and Deputy Green. (Id.).

Haegele called 911 and advised the operator that Chance

had taken her shotgun, that the shotgun didn’t have any

bullets in it, and that Chance wanted the cops to shoot him.

(Doc. # 99-8 at 2:5-25; Doc. # 99-5 at 2; Doc. # 99-9 at

55:25-56:4). Indeed, Haegele testified that she told 911 that

Chance had “got [her] shotgun” and “probably want[ed] [the

police] to shoot him.” (Doc. # 99-9 at 55:25-56:4). The 911

operator relayed this information to a Sheriff’s Office

operator. (Doc. # 99-8 at 2:2-3:4; Doc. # 99-5 at 2).

Deputy McGough arrived first out of the three, at which

point Haegele approached him and stated that Chance had

removed a shotgun from her room. (Doc. # 99-10 at 7:20-8:10).

According to Haegele, she told Deputy McGough that the gun

was unloaded. (Doc. # 99-9 at 55:6-8). Deputy McGough took a

protective shield from his patrol car and then saw Chance

sitting in a neighbor’s yard while holding the shotgun. (Doc.

# 99-10 at 8:11-9:19). Deputy McGough saw Haegele run towards

Chance. (Id. at 9:15-23).

Deputy Green arrived second out of the three, and grouped

together with other deputies on scene when he arrived. (Doc.

# 99-11 at 7:8-8:5). Someone said that they had seen Chance,

at which point Deputy Green saw Chance and Haegele at the end

of the road. (Id. at 8:6-8:16).

Deputy Hicks arrived last of the three, while the group

of deputies, including McGough and Green, were already

walking down the street towards a disturbance at the end of

the road. (Doc. # 99-12 at 8:5-9:23).

At the end of the road, Haegele had approached Chance

and attempted to wrestle the shotgun away from him. (Doc. #

99-11 at 8:6-9:4; Doc. # 99-10 at 9:20-23, 10:14-11:3; Doc.

# 99-9 at 56:21-57:25, 83:5-21). Chance ultimately took

control of the shotgun and fled with it. (Doc. # 99-11 at

8:18-9:20, 10:2-22; Doc. # 99-10 at 11:4-16, 11:25-12:7; Doc.

# 99-9 at 57:10-19). According to Hicks, after the struggle,

Haegele told Deputy Hicks that she did not know if Chance had

found the bullets for the shotgun. (Doc. # 99-12 at 10:4-9).

But Haegele testified that, immediately after her struggle

with Chance, she told an officer that the shotgun was

unloaded. (Doc. # 99-9 at 57:19-23).

The deputies on scene began to search the surrounding

residential area in pursuit of Chance. (Doc. # 99-10 at 12:13-

20; Doc. # 99-12 at 10:4-10:13; Doc. # 99-11 at 9:17-20). At

some point during the search, Deputies Green and Hicks decided

to check in-between the residences together. (Doc. # 99-12 at

12:11-13:4; Doc. # 99-11 at 14:2-20). Deputies Green and Hicks

walked in-between the residences, working their way back to

where Chance had fought with Haegele over the shotgun. (Doc.

# 99-12 at 13:5-10; Doc. # 99-11 at 14:20-25).

While Chance was fleeing from the officers after the

struggle, Chance sent two pictures of himself through a social

media application: one shows Chance armed with a shotgun and

is captioned “Coming after me with ARs”; the other is

captioned “They’re gonna take me away tonight.” (Doc. # 99-2

at 3-4; Doc. # 99-13 at 27:19-29:23).

While the deputies were searching for Chance, Haegele

called her nephew, Scott Staten, Jr., who recorded their phone

conversation. (Doc. # 99-14 at 13:1-9, 13:24-14:11; Doc. #

99-15). On that call, Haegele stated that Chance “beat [her]

up”, “kicked [her] in [her] fucking ribs”, and “fucked up

[her] arm and . . . kicked [her] in the ribs.” (Doc. # 99-15

at 4:10, 12-13, 5:5-6). Also, when asked whether the shotgun

had bullets, Haegele first responded, “No, I never let him

know where the bullets were” but then stated, “Yeah, but you

know what? Who knows if he did find them, you know what I

mean?” (Id. at 5:23-6:4).

While working their way back in-between the residences,

Deputies Green and Hicks encountered Chance standing next to

a shed and a bush tall enough to obscure Chance’s face next

to that shed. (Doc. # 99-11 at 17:6-18:3, 18:17-22, 19:5-8;

Doc. # 99-12 at 37:18-38:9, 38:21-39:12). Deputy Green

testified that Chance was standing with his back to the shed

and had his head turned to the left. (Doc. # 99-11 at 17:15-

18:11). He further testified that, at this time, Chance was

holding the shotgun pointed towards the ground. (Id. at 18:14-

16).

Upon seeing Chance with the shotgun, Deputy Green issued

repeated verbal commands to “Put it down. Put it down. Don’t

move.” (Doc. # 99-12 at 13:23-14:3; Doc. # 99-11 at 19:1-4).

Deputy Hicks testified that, when Deputy Green began to issue

verbal commands and Chance began to move out of the bush,

Deputy Hicks moved towards Deputy Green and saw Chance. (Doc.

# 99-12 at 15:24-16:4, 16:20-17:4, 19:22-20:3, 22:20-24,

38:21-39:12, 39:20-40:4). Both deputies testified that,

instead of putting down the shotgun, Chance turned his head

toward Deputy Green and stepped out from behind the bush,

away from the shed, and toward Deputy Green. (Doc. # 99-11 at

17:5-14, 18:23-25, 19:5-8; Doc. # 99-12 at 20:4-15, 26:10-

24, 38:15-20). Deputy Green was standing in front of Chance

with Chance facing him directly. (Doc. # 99-11 at 19:22-

20:5).

According to Deputy Green, Chance raised the shotgun up

from its lowered position and pointed the shotgun at him.

(Id. at 17:5-14, 18:23-18:25). Deputy Hicks likewise

testified that, when he saw Chance move out of the bush toward

Deputy Green, he saw that Chance had “something long and

black” in his hand that “came up” as Chance “lunged” toward

Deputy Green. (Doc. # 99-12 at 20:5-22, 26:20-24). And, in

his interview after the shooting, Deputy Hicks stated that

when Chance “emerged from the bushes” Chance “had something

in his hand,” but Deputy Hicks did not see clearly that it

was a shotgun until later. (Doc. # 112-14 at 183-184).

As Chance was moving toward Deputy Green and beginning

to raise the shotgun, Deputy Green testified that he continued

to give verbal commands to Chance. (Doc. # 99-11 at 19:12-

16, 19:22-20:9). Chance continued moving toward Deputy Green

and raising the shotgun. (Doc. # 99-11 at 18:23-25, 19:12-

16; Doc. # 99-12 at 20:16-21:5).

Once Chance had aimed the shotgun at Deputy Green, both

Deputies Green and Hicks were “in well-founded fear for

[their] safety and the safety of others.” (Doc. # 99-17 at 6-

7; Doc. # 99-12 at 27:21-28:9). Deputy Green stated in his

interview after the shooting that he thought “it was over and

he was going to get shot.” (Doc. # 99-17 at 6). Both Deputy

Green and Deputy Hicks discharged their firearms at Chance.

(Doc. # 99-11 at 19:20-21, 21:1-4, 22:1-6; Doc. # 99-12 at

21:13-18). Although Deputy Hicks testified in his deposition

that he did not know who fired first (Doc. # 99-12 at 19:20-

21), he said during his interview on the night of the shooting

that Deputy Green fired first. (Doc. # 112-14 at 181). Deputy

Green fired twelve shots, and Deputy Hicks fired five shots.

(Id. at 30). Chance ultimately died from his wounds. (Doc. #

112-13 at 9).

Deputies Hicks and Green were not the only surviving

witnesses to the shooting. A resident of the neighborhood,

Jacqueline Walsh, watched the shooting from her bedroom

window. (Doc. # 99-16 at 15:13-16, 16:13-22, 19:6-9, 32:25-

33:11). When asked what she saw, Walsh testified:

A: I saw Chance stand there with the gun and the

officers that were right outside the window asking

him to put the weapon down. They told him three or

four times to put the weapon down, and he did not.

He picked up the weapon, aiming it at them, and

they opened fire.

Q: I heard you say that Chance was standing

there. Was he standing?

A: Yes, he was standing.

Q: He wasn’t crouching or lying on the ground or

sitting down?

A: No, sir, he was standing.

Q: What did Chance do with the gun in his hand?

A: He raised it and pointed it at the officers.

(Id. at 16:13-17:7).

Ultimately, the investigation revealed that the shotgun

was, in fact, unloaded. (Doc. # 112-14 at 33). The autopsy

report explains that Chance was struck nine times and includes

details of each gunshot wound. (Doc. # 112-13). As numbered

by the autopsy report, bullet 1 entered Chance’s right upper

back and the “direction of the wound path with respect to the

standard anatomic position is to the left, downward and back

to front.” (Id. at 3). Bullet 2 entered Chance’s left upper

back and the “direction of the wound path with respect to the

standard anatomic position is to the left and back to front.”

(Id. at 4). Bullet 3 entered Chance’s right upper back and

the “direction of the wound path with respect to the standard

anatomic position is to the left and downward.” (Id.). Bullet

4 grazed Chance’s left upper back. (Id.). Bullet 5 entered

Chance’s left lower torso and the “direction of the wound

path with respect to the standard anatomic position is to the

left.” (Id. at 4-5). Bullet 6 entered Chance’s right buttock

and the “direction of the wound path with respect to the

standard anatomic position is to the right, downward and back

to front.” (Id. at 5). Bullet 7 entered “the anterior aspect

of the right thigh” and the “direction of the wound path with

respect to the standard anatomic position is to the right and

front to back.” (Id.). Bullet 8 entered “the anterolateral

aspect of the left thigh” and the “direction of the wound

path with respect to the standard anatomic position is to the

right.” (Id. at 5-6). Finally, bullet 9 entered the

“posteromedial aspect of the left thigh” and the “direction

of the wound path with respect to the standard anatomic

position is to the left, downward and back to front.” (Id. at

6).

The medical examiner who performed the autopsy, Dr. Vera

Volnikh, explained that the standard anatomic position is

when a person is “standing straight up with the palm of [his]

hands in the front.” (Doc. # 112-8 at 7:1-6). She testified

that “nobody ever is [in] that anatomic position when they

get shot.” (Id. at 7:5-6).

Before performing the autopsy, Dr. Volnikh had been

provided a brief summary of the shooting by the Polk County

Sheriff’s Office, which stated that Chance had pointed a

shotgun at a deputy and the deputy fired on Chance. (Id. at

19:3-19). When she was asked whether her autopsy findings

gave her “any reason to question” the summary she received,

Dr. Volnikh responded:

Not really, because he has some of the wounds in

the - in the front of the leg, especially in front

of the leg, and then I guess he’s turning and he

has on the side and some of in the back. So, no, I

didn’t have any reason to believe that that’s

something that it’s not the way that they describe

it to me.

(Id. at 22:25-23:10).

When she was asked whether the gunshot wounds were

“consistent with crouching,” Dr. Volnikh testified “It[]

could be crouching. It[] could be bending. I am not sure if

it’s just crouching.” (Id. at 26:5-13). And, when she was

asked whether any of the bullet wounds in Chance’s back ended

with an exit wound out the front of the chest, she responded:

A: We have the bullet that[] [goes] lateral. It’s

go from right to left and back to front, but, again,

it’s kind of laterally they go, but no exit. I don’t

believe there’s exit in the front. We have two

bullets — no, there’s no exit in the front. From

these three wound in the back you’re talking about?

Q: Yes.

A: No. We have two bullets and one grazed wound,

which is just graze the skin, you know, right to

left. And the other will go from right to left too.

One go just under the skin, kind of hitting the

wing bone. The other is going kind of back to front,

but also to the left. So they all come from right

to left. So mostly he — wherever his left side is

exposed to the deputy and they’re firing at some

point, because some of the wound, like I say, it’s

anterior or on the left, which is lateral.

(Id. at 25:7-23)(emphasis added).

After the shooting, Sheriff Judd held a press conference

during which he stated that “Deputies did what they should

have done. . . . We weren’t able to stop an unfortunate set

of events.” (Doc. # 112-23 at 24). A news article reflects

that Sheriff Judd has made statements in support of deputies

involved in other shootings. (Doc. # 112-25). For example,

Sheriff Judd is quoted as saying “We don’t choose to shoot

people, people choose for us to shoot them. . . . We’re

distraught for the family as well. But the bottom line is we

go home at the end of our shift, and if people decide to

attack us, beat us, try to take guns, we’re going to shoot

ya.” (Id. at 9).

Ultimately, neither Green nor Hicks were disciplined for

the shooting. (Doc. # 112-24 at 16:16-20).

Haegele, individually and on behalf of Chance’s Estate,

initiated this case on November 5, 2019. (Doc. # 1). Haegele’s

second amended complaint contains the following counts:

wrongful death pursuant to Florida Statute § 768.16 et seq.

(the Florida Wrongful Death Act, the “FWDA”) against (I)

Sheriff Judd, (II) Green, and (III) Hicks; and 42 U.S.C. §

1983 excessive force claims against (IV) Sheriff Judd, (V)

Green, and (VI) Hicks. (Doc. # 44).

Defendants seeks entry of summary judgment on all

claims. (Doc. # 99). Haegele has responded (Doc. # 113), and

Defendants have replied. (Doc. # 118). With the Court’s

permission, Haegele has filed a sur-reply. (Doc. # 126). The

Motion is ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of 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 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

A. Section 1983 Claims against Deputies

Deputies Green and Hicks argue that they are entitled to

qualified immunity for the Section 1983 excessive force

claims against them. (Doc. # 99 at 9-19).

“Qualified immunity affords complete protection to

government officials sued individually,” Terrell v. Smith,

668 F.3d 1244, 1250 (11th Cir. 2012), except in cases where

“the law preexisting the defendant official’s supposedly

wrongful act was already established to such a high degree

that every objectively reasonable official standing in the

defendant’s place would be on notice that what the defendant

official was doing would be clearly unlawful given the

circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th

Cir. 2002). Qualified immunity “protect[s] from suit ‘all but

the plainly incompetent or one who is knowingly violating the

federal law.’” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002)(quoting Willingham v. Loughnan, 261 F.3d 1178, 1187

(11th Cir. 2001)).

In order to establish a defense of qualified immunity,

a government official must first demonstrate that he or she

was acting within his or her discretionary authority. See

Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003). Haegele

does not appear to challenge that Hicks and Green were acting

in their discretionary authority at the time of the shooting.

(Doc. # 113 at 12-13).

“Once the defendants establish that they were acting

within their discretionary authority, the burden shifts to

the plaintiff to demonstrate that qualified immunity is not

appropriate.” Lumley v. City of Dade City, 327 F.3d 1186,

1194 (11th Cir. 2003). The Court follows a two-part analysis

in determining whether qualified immunity applies. Vinyard v.

Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). The first part

asks “whether [the] plaintiff’s allegations, if true,

establish a constitutional violation.” Id. (quoting Hope v.

Pelzer, 536 U.S. 730, 736 (2002)(internal quotation marks

omitted)). The second part asks “whether the right was clearly

established.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)(internal quotation marks omitted)). “Both elements .

. . must be satisfied for an official to lose qualified

immunity.” Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th

Cir. 2010).

Haegele “must establish qualified immunity is not

appropriate because the facts when viewed in the light most

favorable to [her] show that [Deputies Hicks and Green]

violated a constitutional right.” Benson v. Gordon Cnty., 479

F. App’x 315, 317 (11th Cir. 2012)(citing Mercado v. City of

Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005)). “At summary

judgment, [the Court] cannot simply accept the officer’s

subjective version of events, but rather must reconstruct the

event in the light most favorable to the non-moving party and

determine whether the officer’s use of force was excessive

under those circumstances.” Fils v. City of Aventura, 647

F.3d 1272, 1288 (11th Cir. 2011)(citing Vinyard, 311 F.3d at

1347–48 as “evaluating, at summary judgment, the allegedly

excessive force under the facts as described by the plaintiff,

notwithstanding the defendant-officer’s different version of

events”).

Although “the right to make an arrest . . . necessarily

carries with it the right to use some degree of physical

coercion,” it remains that “[t]he Fourth Amendment’s freedom

from unreasonable searches and seizures encompasses the plain

right to be free from the use of excessive force in the course

of an arrest.” Lee, 284 F.3d at 1197. “The inquiry into

whether this right was violated requires a balancing of the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.”

Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2015)(internal

citation and quotation marks omitted).

In determining reasonableness, a court “look[s] at the

fact pattern from the perspective of a reasonable officer on

the scene with knowledge of the attendant circumstances and

facts, and balance[s] the risk of bodily harm to the suspect

against the gravity of the threat the officer sought to

eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th

Cir. 2009)(citation omitted). The reasonableness of the force

used “must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)). A court’s “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.” Id.

(quoting Graham, 490 U.S. at 396-97 (internal quotation marks

omitted)).

Courts evaluate several factors, such as “the severity

of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest

by flight.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1305-

06 (11th Cir. 2009)(quoting Graham, 490 U.S. at 396). Other

factors include “(1) the need for the application of force,

(2) the relationship between the need and amount of force

used, and (3) the extent of the injury inflicted.” Vinyard,

311 F.3d at 1347 (quoting Lee, 284 F.3d at 1197-98). The need-

for-force criterion “is measured by the severity of the crime,

the danger to the officer, and the risk of flight.” Lee, 284

F.3d at 1198. “And in deadly force cases we are to determine

whether the officer had probable cause to believe that the

suspect posed a threat of ‘serious physical harm’ to the

officer or others, and whether the officer had given the

suspect a warning about the use of deadly force, if doing so

was feasible.” Cantu v. City of Dothan, 974 F.3d 1217, 1229

(11th Cir. 2020). “Not all of the factors are relevant to all

excessive force cases.” Id.

Here, Haegele has not established a constitutional

violation. Taking all the facts in the light most favorable

to Haegele, Chance was standing and raising the shotgun at

Deputy Green when Deputies Green and Hicks fired at him,

resulting in his death.

The evidence from the autopsy report and Dr. Volnikh’s

deposition do not create a genuine issue of material fact

regarding whether Chance was “cowering” in the bush when he

was shot, as Haegele maintains. While certain entrance wounds

are on Chance’s back, those wound paths were in a lateral

trajectory, meaning from Chance’s side. (Doc. # 112-13). Dr.

Volnikh testified that these wounds “all come from right to

left” and suggested this had to do with Chance’s side being

exposed to a deputy during the shooting. (Doc. # 112-8 at

25:7-23). And, while four of the nine wounds also have a

downward trajectory in relation to the standard anatomic

position, five wounds do not have a downward trajectory. (Doc.

# 112-13). Dr. Volnikh testified that the wounds with downward

trajectories could be consistent with “crouching” or

“bending.” (Doc. # 112-8 at 26:5-13). But she also testified

that the autopsy results did not give her any reason to

question the summary of the shooting she was given — that

Chance stood and raised a shotgun at a deputy when he was

shot — and noted a wound in the front of Chance’s leg. (Id.

at 22:25-23:10).

Nor do the select crime scene photographs submitted by

Haegele — which she cited twice in passing but failed to

actually discuss in her response (Doc. # 113 at 5, 9) — rebut

the deputies’ testimony, as Haegele now claims in her sur-

reply. (Doc. # 126 at 5-7). Sadly, these photos depict

Chance’s body lying on the ground near a bush with his feet

near the base of the bush, which is in turn in front of a

shed. (Doc. # 112-15). They do not suggest that Chance was

crouched in between the bush and the shed during the shooting,

rather than standing near the bush. In short, the autopsy

report, Dr. Volnikh’s testimony, and the select crime scene

photographs do not raise a genuine issue of material fact

about whether Chance was cowering and crouching in a bush

during the shooting.

While Haegele has attempted to point out discrepancies

between Deputy Hicks’ interview on the night of the shooting

and his deposition, the Court does not find the two versions

of events inconsistent. Regardless, even disregarding Deputy

Hicks’ statements and testimony, there is still the sworn

testimony of two witnesses — Deputy Green and Ms. Walsh —

that Chance was standing and facing deputies at the time of

the shooting. (Doc. # 99-11 at 17:5-19:21; Doc. # 99-16 at

16:13-17:7). Furthermore, both testified that, despite

commands to drop the weapon, Chance raised the shotgun before

Deputies Green and Hicks fired. (Doc. # 99-11 at 17:5-14,

18:23-18:25; Doc. # 99-16 at 16:13-17:7).

In short, the deputies here had witnessed Chance engage

in a forceful struggle with Haegele for the shotgun, then

flee through a residential neighborhood. When Deputies Green

and Hicks did encounter him, he refused to comply with orders

to drop the shotgun and actually raised the shotgun at Deputy

Green.

Under these circumstances, Deputies Green and Hicks

reasonably feared for their safety and the safety of others

in the area. Shooting Chance — an armed man who threatened

law enforcement with a deadly weapon — was not a violation of

the Fourth Amendment. See Garczynski v. Bradshaw, 573 F.3d

1158, 1168 (11th Cir. 2009)(“[T]he escalation into deadly

force was justified by Garczynski’s refusal to comply with

the officers’ commands. After identifying themselves, the

officers repeatedly ordered Garczynski to show his hands.

They also repeatedly commanded him to drop the phone and then,

after he raised a gun to his head, to drop his gun. Instead

of obeying these commands, Garczynski swung the gun from his

head in the direction of the officers, at which point they

fired. The officers reasonably reacted to what they perceived

as an immediate threat of serious harm to themselves.”);

Montoute v. Carr, 114 F.3d 181, 185 (11th Cir. 1997)(“At least

where orders to drop the weapon have gone unheeded, an officer

is not required to wait until an armed and dangerous felon

has drawn a bead on the officer or others before using deadly

force.”). Nor was it excessive force for the deputies to shoot

Chance nine times to dispel the threat. See Jean-Baptiste v.

Gutierrez, 627 F.3d 816, 821–22 (11th Cir. 2010)(“A police

officer is entitled to continue his use of force until a

suspect thought to be armed is ‘fully secured.’” (citation

omitted)).

Additionally, that Haegele had informed deputies that

Chance’s shotgun was unloaded does not change the result. The

deputies were not required to take Haegele’s word for it and

wait for Chance to fire on them before using deadly force.

See Id. at 821 (“[T]he law does not require officers in a

tense and dangerous situation to wait until the moment a

suspect uses a deadly weapon to act to stop the suspect.”

(quoting Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007))).

The reasonableness of the deputies’ decision not to treat the

shotgun as unloaded is underscored by the fact that, despite

her representations to deputies, Haegele herself was unsure

if the shotgun was loaded. (Doc. # 99-15 at 5:23-6:4). Again,

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. While the fact that the shotgun was unloaded

renders Chance’s death all the more tragic, it does not

support that Deputies Green and Hicks acted unreasonably when

they fired their weapons.

Similarly, Chance’s mental health struggles and suicidal

ideation do not convert Deputies Green and Hicks’ actions

into a constitutional violation. See Shaw v. City of Selma,

884 F.3d 1093, 1101 (11th Cir. 2018)(“The shooting of a

mentally ill man was tragic, as such shootings always are,

but tragedy does not equate with unreasonableness.”);

Garczynski, 573 F.3d at 1170 (11th Cir. 2009)(affirming

qualified immunity for officers who fatally shot a suicidal

man).

Because there was no constitutional violation, Deputies

Green and Hicks are entitled to qualified immunity for the

Section 1983 claims against them, Counts V and VI. The Motion

is granted as to these counts.

B. Section 1983 Claim against Sheriff Judd

It is well-established that “a municipality may not be

held liable under [Section] 1983 solely because it employs a

tortfeasor.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 403 (1997). Rather, to recover damages from

Sheriff Judd under Section 1983, Haegele must show: “(1) that

[Chance’s] 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)(citing City of

Canton v. Harris, 489 U.S. 378, 388 (1989)).

Because the Court concludes that Deputies Green and

Hicks did not violate Chance’s constitutional rights, the

Section 1983 custom or policy claim against Sheriff Judd

fails. See Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir.

1996)(“[A]n inquiry into a governmental entity’s custom or

policy is relevant only when a constitutional deprivation has

occurred. Since we have determined that Deputy Watson’s

conduct did not cause the Rooneys to suffer a constitutional

deprivation, we need not inquire into Volusia County’s policy

and custom relating to patrol vehicle operation and

training.”); see also Garczynski, 573 F.3d at 1170–71

(“Garczynski failed to show that any of the named individual

police officers deprived him of his constitutional rights by

using excessive or deadly force. Absent a constitutional

violation, we need not explore whether PBSO’s policies

regarding crisis intervention training violated Garczynski’s

constitutional rights. Accordingly, we affirm summary

judgment in favor of Sheriff Bradshaw.”); Willis v. Mock, 600

F. App’x 679, 685 (11th Cir. 2015)(“Here, neither Captain

James nor Sergeant Turner violated Willis’s constitutional

rights. So Willis’s claim against the City of Apalachicola

fails. Accordingly, we conclude that the district court did

not err in granting summary judgment to the city.”).

Summary judgment is granted for Sheriff Judd on the

Section 1983 claim against him, Count IV.

C. Wrongful Death Claims

The Section 1983 claims provided the sole source of

federal jurisdiction in this case, as the parties do not meet

the requirements of diversity jurisdiction pursuant to 28

U.S.C. § 1332. Rather, the Court concludes that supplemental

jurisdiction pursuant to 28 U.S.C. § 1367 supplies the only

remaining basis for jurisdiction over the FWDA claims.

“The dismissal of [a plaintiff’s] underlying federal

question claim does not deprive the [c]ourt of supplemental

jurisdiction over the remaining state law claims.” Baggett v.

First Nat. Bank of Gainesville, 117 F.3d 1342, 1352 (11th

Cir. 1997). “Indeed, under 28 U.S.C. § 1367(c), the Court has

the discretion to decline to exercise supplemental

jurisdiction over non-diverse state law claims, where the

[c]ourt has dismissed all claims over which it had original

jurisdiction, but [the court] is not required to dismiss the

case.” Id. Nevertheless, the Eleventh Circuit has “encouraged

district courts to dismiss any remaining state claims when,

as here, the federal claims have been dismissed prior to

trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th

Cir. 2004).

The FWDA claims depend on determinations of state law.

“[S]tate courts, not federal courts, should be the final

arbiters of state law.” Ingram v. School Bd. of Miami–Dade

Cnty., 167 F. App’x 107, 108 (11th Cir. 2006). Furthermore,

the Court finds that principles of judicial economy and comity

weigh in favor of the Court declining to exercise supplemental

jurisdiction over these claims.

Accordingly, because the Court grants Defendants’ Motion

for Summary Judgment with regard to the federal claims, and

diversity jurisdiction does not exist, the Court in its

discretion declines to exercise supplemental jurisdiction

over the FWDA claims. See Nagy v. Taylor Cnty. Sch. Dist.,

No. 5:16-CV-70-MTT, 2017 WL 4448579, at *14 (M.D. Ga. Oct. 5,

2017)(“[B]ecause Defendants are entitled to judgment as a

matter of law on the federal law claims, the Court declines

to exercise supplemental jurisdiction over the state law tort

claims.”). The FWDA claims, Counts I, II, and III, are

dismissed without prejudice so they may be reasserted in state

court.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendants Sheriff Grady Judd, Reginald Green, and

Joseph Hicks’ Motion for Summary Judgment (Doc. # 99) is

GRANTED to the extent set forth herein.

(2) The Florida Wrongful Death Act claims, Counts I, II, and

III, are DISMISSED WITHOUT PREJUDICE so that they may be

reasserted in state court.

(3) The Clerk is directed to enter judgment in favor of

Defendants and against Plaintiff Christina Haegele,

individually and as personal representative of the

estate of Chance Haegele, for Counts IV, V, and VI.

(4) Thereafter, the Clerk is directed to CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this

29th day of December, 2020.

lini? tr. Musnerby CnoeFh

VIRGINIA M. HERNANDEZ'COVINGTON

UNITED STATES DISTRICT JUDGE

29