Lingelbach v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RANDY SCOTT LINGELBACH, JR.,

Plaintiff,

v. Case No. 3:19-cv-457-BJD-MCR

JASON SMITH, et al.,

Defendants.

____________________________________

ORDER

I. Status

Plaintiff, Randy Scott Lingelbach, Jr., an inmate of the Florida penal

system, is proceeding pro se on an amended complaint for the violation of civil

rights against one Defendant, Officer Jason Smith (Doc. 7; Am. Compl.).1

Before the Court is Defendant Smith’s motion for summary judgment (Doc. 37;

Motion), which he supports with video and documentary exhibits (Docs. 36-1

through 36-37; Def. Exs. 1-37). Plaintiff has responded to the motion (Doc. 57;

Pl. Resp.) with supporting exhibits consisting of his own declaration, and

Defendant Smith’s and former Defendants’ responses to his discovery requests

1 The Court previously granted Defendants Lee and Kopinski’s motion

for summary judgment. See Order (Doc. 69).

(Docs. 58-1 through 58-7; Pl. Exs. A-G). With the Court’s permission,

Defendant Smith filed a limited reply (Doc. 68; Reply).

II. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he court shall

grant summary judgment 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). An issue is genuine when the evidence

is such that a reasonable jury could return a verdict in favor of the

nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.

1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th

Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving

party’s position is insufficient to defeat a motion for summary judgment.”

Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th

Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The record to be considered

on a motion for summary judgment may include “depositions, documents,

electronically stored information, affidavits or declarations, stipulations

2

(including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).

When the moving party has discharged its burden, the non-moving

party must point to evidence in the record to demonstrate a genuine dispute

of material fact. Id. Substantive law determines the materiality of facts, and

“[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is

appropriate, a court “must view all evidence and make all reasonable

inferences in favor of the party opposing [the motion].” Haves v. City of

Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v.

Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Complaint Allegations & Evidence

Plaintiff alleges Defendant Smith used excessive force by shooting him

after Plaintiff robbed a Walmart store and engaged officers in a car chase in

Fernandina Beach on April 27, 2015. See Am. Compl. at 5-6. Plaintiff asserts

the car chase ended with Plaintiff’s vehicle—a pick-up truck—skidding into a

ditch. Id. at 6. Once the truck was in the ditch, Plaintiff alleges, Defendant

Smith approached and opened the driver’s door, but the door shut on its own

because of the angle at which the truck was positioned. Id. According to

3

Plaintiff, after the driver’s door closed, Defendant Smith “stepped back . . . and

fired two rounds from his service firearm.” Id. Both shots hit Plaintiff in the

head. Id. at 7. Plaintiff explicitly alleges, “At no time after Plaintiff ended up

in the ditch did Plaintiff rev [the engine] or attempt to get out of the ditch

before getting shot by Defendant Smith.” Id. at 6. Plaintiff further alleges that

officers tased him after they removed him from the truck. Id. at 7.2

The parties primarily agree on the sequence of events that led to Plaintiff

being shot. Records show that, after Plaintiff roamed around Walmart for

about two hours, he left through the entrance with a shopping cart containing

an unpurchased forty-three-inch television from which Plaintiff had removed

the anti-theft device. See Def. Ex. 20 at 2.3 As Plaintiff exited the store,

Walmart loss-prevention officers approached Plaintiff, who became “hostile.”

Id. One officer grabbed Plaintiff, but Plaintiff threatened to stab him with a

“sharp” object, which Plaintiff swung in the direction of the Walmart officers

and a customer who attempted to help subdue Plaintiff. Id.; See also Def. Ex.

2 Plaintiff does not allege which officer tased him, see Am. Compl. at 7,

and at deposition, he testified he could not be sure he was tased, see Def. Ex.

13 at 78, 84. In response to Defendant Smith’s motion, Plaintiff offers no

evidence showing he was tased at the scene, and he appears to have abandoned

that claim. See Pl. Resp. at 3, 6.

3 Referenced page numbers for exhibits are those assigned by the Court’s

electronic case management system, not any internal numbering a document

may contain.

4

34 at 5. The officers did not further pursue Plaintiff, who then retrieved the

shopping cart and walked away. See Def. Ex. 20 at 2. Plaintiff unloaded the

television into the bed of a black Dodge Ram pick-up truck and drove out of the

parking lot “in a reckless manner, driving over a curb and grass.” Id. See also

Def. Ex. 17.

A Walmart employee called 911 reporting that an “armed robbery” was

in progress, and she pleaded with the 911 operator to have the officers “hurry.”

See Def. Ex. 17; Def Ex. 20 at 1. The caller said the robber assaulted two

Walmart employees and a customer and threatened to “cut” one of the

employees while he was holding “something in his hand.”4 See Def. Ex. 17.

Officers with the Fernandina Beach Police Department (FBPD) responded to

the call. Defendant Smith and Officer Kopinski, who were the first two officers

to respond, wrote in their respective reports that the dispatch operator said

the robbery suspect “was armed with a knife” and had assaulted people at

Walmart. See Def. Ex. 8 at 14, 23, 28, 31; Def. Ex. 18 ¶3.

Defendant Smith, driving his police cruiser, was near Walmart when he

heard the call. See Def. Ex. 8 at 14. As he approached Walmart, Defendant

4 The sharp item Plaintiff wielded turned out to be a hypodermic syringe,

which paramedics found in his pants pocket before transporting him to the

hospital after the shooting. See Def. Ex. 8 at 11, 31-32.

5

Smith saw a black Dodge Ram pick-up truck travel across some grass, a

sidewalk, and the curb and fishtail onto the road just in front of him. See Def.

Ex. 18 ¶¶ 5, 6. Defendant Smith pursued the truck with his lights and siren

activated. Id. ¶¶ 7, 8; Def. Ex. 20 at 3. Defendant Smith later reported that

Plaintiff was driving “in a reckless manner, fishtailing, and weaving in and out

of traffic.” See Def. Ex. 20 at 3. See also Def. Ex. 8 at 39, 40; Def. Ex. 17; Def.

Ex. 34 at 5. Plaintiff drove through another business parking lot “at a high rate

of speed”; ran two red lights; drove up to eighty miles per hour in a thirty mile

per hour residential area; ran a stop sign; and barreled through construction-

zone barricades. See Def. Ex. 18 ¶¶ 6, 12; Def. Ex. 20 at 3. Defendant Smith

avers that Plaintiff almost hit a pedestrian during the pursuit. See Def. Ex. 18

¶ 11.

At a dead-end on Bonnieview Road, Plaintiff pulled over and came to a

brief stop. Id.; See also Def. Ex. 19; Def. Ex. 34 at 5. Defendant Smith stopped

to the right of the truck’s passenger side, and Officer Kopinski stopped behind

the truck. Both officers had their lights and sirens activated. See Def. Ex. 18 ¶

17; Def. Ex. 19; Def. Ex. 20 at 3. Plaintiff immediately reversed and quickly

turned back the way he had come, driving in the direction of Officer Kopinski’s

marked police car. See Def. Ex. 20 at 3. Officer Kopinski, who was in the

process of stepping out of his vehicle had to “dive back into his vehicle to avoid

6

being struck by [Plaintiff].” Id. See also Def. Ex. 14. Officer Kopinski told

investigators with the Florida Department of Law Enforcement (FDLE) that

Plaintiff nearly hit him. See Def. Ex. 14. Plaintiff was driving so fast that the

“force or speed of [his driving] . . . pushed the driver’s door of Kopinski’s patrol

vehicle closed.” See Def. Ex. 9 at 4.

Defendant Smith fired four shots at the rear windshield of the truck as

Plaintiff was driving toward Officer Kopinski’s car because Smith feared

Plaintiff “was about to hit or run over Officer Kopinski.” See Def. Ex. 18 ¶ 19;

Def. Ex. 19. Plaintiff concedes Defendant Smith’s fear that Plaintiff would hit

officer Kopinski was “reasonable.” See Am. Compl. at 6. After Defendant Smith

fired those initial shots, Plaintiff executed another U-turn. See Def. Ex. 18 ¶¶

21, 22. The truck slid off the road into a drainage ditch, but Plaintiff continued

“pressing the accelerator and rocking the vehicle forward and backward” in

what Defendant Smith and other officers perceived to be an attempt to

continue his escape. Id. ¶ 22. See also Pl. Ex. C at 20; Pl. Ex. E ¶ 33; Pl. Ex. F

¶ 48. Plaintiff’s truck was facing both Defendant Smith and Officer Kopinski,

who were both on foot. See Def. Ex. 14; Def. Ex. ¶ 21.

Contrary to the allegation in his complaint, Plaintiff now concedes that

when his truck landed in the ditch, he “‘gunned’ the engine in an effort to”

continue fleeing from police because he believed Defendant Smith, who was

7

walking toward the vehicle with his weapon drawn, was intent on “murdering

him.” See Pl. Resp. at 2, 16-17. Plaintiff contends, however, that he was no

longer a threat to officers or the public because the passenger-side tires were

stuck in the ditch and were only spinning. Plaintiff says, “[he] was not engaged

in active flight – the truck was stationary.” Id. at 16.

When Plaintiff’s truck was in the ditch, Defendant Smith approached the

driver’s door, but he could not see inside because the windows were “heavily

tinted.”5 See Def. Ex. 18 ¶ 22. Plaintiff contends Defendant Smith “ran over

and opened the door.” See Def. Ex. 13 at 74. At deposition, Plaintiff testified as

follows: “[Smith] looked inside [the truck]. He didn’t say nothing. He just had

this look on his face, and then he shut the door, and he stepped back and then

he shot through the window.” Id. Defendant Smith denies having opened the

door before shooting, though he accepts the fact “for purposes of this motion.”

See Reply at 2 n.1.

Plaintiff alleges “Defendant Smith did not issue any verbal commands

or orders” before shooting him in the head. See Am. Compl. at 5. Defendant

5 The other officers involved agree it was impossible to see inside the

truck from where they were positioned because the windows were so dark. See

Def. Ex. 8 at 41; Def. Exs. 14, 15. In fact, Officer Lee described the window tint

as a “mirror,” showing only a reflection. See Def. Ex. 8 at 41; Def. Ex. 15.

Plaintiff himself acknowledges it was not possible to see through the side

windows. See Am. Compl. at 8; Def. Ex. 13 at 119.

8

Smith disputes this allegation. He avers that, before shooting into the truck,

he gave “multiple verbal commands [to Plaintiff] to stop the vehicle,” which

Plaintiff ignored. See Def. Ex. 18 ¶ 22. Because the Court must construe the

facts in the light most favorable to Plaintiff, the Court accepts that Defendant

Smith did not issue any oral warnings to Plaintiff before shooting him.

After shooting into the truck, Defendant Smith opened the driver’s door

to discover a female passenger inside with Plaintiff. See Def. Ex. 20 at 3. The

passenger told officers she and Plaintiff had been awake for several days “on a

meth binge,” id., and that Plaintiff had injected himself with meth just before

entering Walmart, see Def. Ex. 9 at 6. The truck was registered to a different

woman, who reported it stolen the following day.6 See Def. Ex. 20 at 4; Def. Ex.

34 at 6. Sergeant Hamilton, who arrived at the scene moments after Defendant

Smith shot Plaintiff, reported that Smith said, “I shot him . . . Sarge, he tried

to run over me!” See Def. Ex. 8 at 31.

Plaintiff was air-lifted to Shands Hospital. See Def. Ex. 34 at 5. Before

transporting Plaintiff, paramedics found a syringe in his pocket. Id.

6 Plaintiff testified at deposition that a friend paid him money to drive

the female passenger from Georgia to Florida. See Def. Ex. 13 at 50. The friend

also loaned Plaintiff the truck, which the friend “rented” from a guy in

exchange for drugs. Id. at 148.

9

Additionally, a knife was found on the ground close to the truck, though it is

unclear whether the knife belonged to Plaintiff. See Def. Ex. 9 at 8.

Defendant Smith explains why he believed deadly force was necessary:

“The fact that [Plaintiff] did not submit to my authority after I initially

deployed my weapon only confirmed my belief that [he] would take whatever

action he felt was necessary to evade capture and arrest.” See Def. Ex. 18 ¶ 24.

Defendant Smith avers he believed his life, the life of the other officers, and

the lives of civilians were at risk if Plaintiff had been “successful in his attempt

to reinitiate his flight and pursuit.” Id. ¶ 25. See also Def. Ex. 12 at 3.

Defendant Smith’s dash-cam captured most of the pursuit but not the

shooting because when Defendant Smith exited his patrol car at the end of

Bonnieview Road, the car was facing away from subsequent events.7 See Def.

Ex. 19. A report prepared by the Office of the State Attorney noted the chase

“lasted more than three minutes and extended a distance of approximately two

miles.” See Def. Ex. 9 at 4. State Attorney Angela B. Corey found Defendant

Smith’s use of deadly force was justified because Smith knew Plaintiff had

forcibly robbed a store, may have been armed with a knife, attempted to hit a

7 Officer Kopinski’s dash-cam was not working that day. See Def. Ex. 9

at 4.

10

police officer, drove recklessly for about two miles, and refused to surrender

even after two police cars with lights and sirens pursued him. Id. at 9.

The FBPD reviewed Defendant Smith’s use of force following the

incident. See Def. Ex. 8 at 2. A deputy reviewed reports prepared by other

FBPD officers, the FDLE, and the State Attorney’s Office, and concluded there

was “solid evidence . . . that Officer Smith acted within the scope of the [FBPD]

General Orders governing the use of deadly force.” Id.

At deposition, Plaintiff denied having taken meth or any other drugs

before entering Walmart on the day of the incident. See Def. Ex. 13 at 51.

However, when interviewed by FDLE agents only days after the incident,

Plaintiff conceded he had shot up with “ice” (meth) the night before the

incident, not long before he left Georgia for Fernandina Beach. See Def. Ex. 10.

Additionally, Plaintiff later attributed his actions to having been on drugs that

day. See Def. Ex. 35 at 23. When asked why Plaintiff believed Defendant

Smith’s conduct constituted excessive force, Plaintiff suggested Smith should

have used a taser gun, pepper spray, baton, or rubber bullets instead of

resorting to the use of deadly force. See Def. Ex. 13 at 82.8

8 Plaintiff also testified that Defendant Smith’s initial shots constituted

excessive force. See Def. Ex. 13 at 82-83. Plaintiff has abandoned that claim,

however. In his response to the motion, Plaintiff concedes the initial shots

“were justified” because he nearly hit Officer Kopinski. See Pl. Resp. at 13.

11

Plaintiff was charged by amended information with armed robbery;

aggravated fleeing or attempting to elude a law enforcement officer; and

aggravated assault on a law enforcement officer with a deadly weapon (a

vehicle). See Def. Ex. 22 at 1. On November 12, 2015, with the assistance of

counsel, Plaintiff withdrew his previously entered not-guilty plea and pled

guilty. See Def. Ex. 4 at 3. The judge accepted his plea based on the factual

basis set forth in the arrest warrant affidavit. Id. at 9. The judge sentenced

Plaintiff to twenty years in prison. See Def. Ex. 11 at 6.

At Plaintiff’s sentencing hearing, he read from a letter he had written to

apologize for his actions. See Def. Ex. 35 at 23. Plaintiff acknowledged he

displayed “irrational, lawless, erratic, impulsive, and self-destructive

behaviors,” which he attributed to being on drugs and not taking his prescribed

psychotropic medications. Id. Plaintiff said, “On that morning I was

intoxicated, delusional, in the state of paranoia and psychosis.” Id. Plaintiff

expressed deep remorse and accepted “full responsibility for [his] actions and

reactions.” Id. at 24. He also thanked the officers and first responders for

saving his life. Id. at 25. In addition to expressing his remorse in open court,

Plaintiff wrote letters of apology to Defendant Smith and other officers as well

as to Walmart employees. Id. at 31.

12

Plaintiff’s attorney summarized for the sentencing court the injuries

Plaintiff sustained and further noted Plaintiff acknowledged his actions were

responsible for those injuries:

[A]s a result of what happened on that day he’s

got some injuries that he’s going to deal with for the

rest of his life . . . and he knows that his actions were

ultimately what caused that. He’s lost vision in one of

his eyes, he no longer can – or no longer has a sense of

smell, he’s lost his sense of taste, he has some short-

term memory issues, and he understands that those

were caused by, or ultimately his actions are what led

to that, and he is prepared to go forward with his life

and deal with them as he has to.

Id. at 32. In addition to the injuries Plaintiff’s attorney reported at his

sentencing hearing, Plaintiff explained at deposition that he lost his eye,

suffers from daily headaches or discomfort in his face and head, and sometimes

has drainage from his ears and eyes. See Def. Ex. 13 at 90-92. Plaintiff’s

surgeon told him he will need additional surgeries. Id. at 91.

IV. Analysis & Conclusions

Defendant Smith asserts three arguments in support of summary

judgment: that Plaintiff’s claim is Heck9-barred; that his use of force was

9 In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the Supreme Court

held a state prisoner’s claim for damages “is not cognizable under § 1983 . . . .

[if] a judgment in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence.” Cases barred by Heck “are

typically dismissed without prejudice” subject to the plaintiff’s right to re-

13

objectively reasonable; and that he is entitled to qualified immunity. See

Motion at 7, 13, 20. Regardless of whether Heck bars Plaintiff’s claim, the

Court finds Defendant Smith is entitled to qualified immunity because

Plaintiff fails to establish the violation of a clearly established constitutional

right.10

An officer sued in his individual capacity “is entitled to qualified

immunity for his discretionary actions unless he violated ‘clearly established

statutory or constitutional rights of which a reasonable person would have

known.’” Black v. Wigington, 811 F.3d 1259, 1266 (11th Cir. 2016) (quoting

Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009)). Qualified immunity

allows officers to exercise their official duties without fear of facing personal

liability. Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). The doctrine

protects “all but the plainly incompetent” or those who knowingly violate a

person’s constitutional rights. Id.

initiate a civil action if his criminal conviction is later invalidated. See Petersen

v. Overstreet, 819 F. App’x 778, 779 (11th Cir. 2020).

10 Heck deprives a plaintiff of a cause of action; it does not necessarily

strip a district court of jurisdiction. See Harrigan v. Metro Dade Police Dep’t

Station #4, 977 F.3d 1185, 1191 n.4 (11th Cir. 2020). See also Teagan v. City

of McDonough, 949 F.3d 670, 678 (11th Cir. 2020) (suggesting, without

deciding, that Heck is more akin to an affirmative defense, not a jurisdictional

rule).

14

Upon asserting a qualified immunity defense, a defendant bears the

initial burden to demonstrate he was acting in the scope of his discretionary

authority at the relevant times. Dukes v. Deaton, 852 F.3d 1035, 1041-42 (11th

Cir.), cert. denied, 138 S. Ct. 72 (2017). If the defendant carries his burden, the

burden shifts to the plaintiff who must demonstrate two elements: the

defendant’s conduct caused him to suffer a constitutional violation, and the

constitutional violation was “clearly established” at the time. Alcocer, 906 F.3d

at 951.

It is undisputed Defendant Smith was acting in the scope of his

discretionary authority at the relevant times. Thus, the burden shifts to

Plaintiff to demonstrate Defendant Smith violated a constitutional right that

was clearly established. “This inquiry must be undertaken in light of the

specific context of the case, not as a broad general proposition.” See

McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) (quoting Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).

Whether an officer used excessive force when arresting a suspect is

analyzed “under the Fourth Amendment’s objective reasonableness standard.”

Id. at 1205-06 (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). The

Supreme Court has articulated a fact-specific test courts must apply when

balancing an arrestee’s Fourth Amendment interests against the

15

governmental interests at stake. Graham, 490 U.S. at 396. Relevant factors

include “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.” Id.

These factors must be considered from the “perspective of a reasonable officer

on the scene.” Id. Importantly, “[t]he calculus of reasonableness must [allow]

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. at

396-97.

In analyzing whether an officer is entitled to qualified immunity, his

conduct is “judged against the backdrop of the law at the time.” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004). In 2015, the Supreme Court recognized that

it had “never found the use of deadly force in connection with a dangerous car

chase to violate the Fourth Amendment, let alone to be a basis for denying

qualified immunity.” Mullenix v. Luna, 577 U.S. 7, 8, 14-15 (2015) (reversing

the district court’s denial of qualified immunity to an officer who used deadly

force to end an eighteen-minute, twenty-five-mile, high-speed car chase on an

interstate). See also Scott v. Harris, 550 U.S. 372, 386 (2007) (“A police officer’s

attempt to terminate a dangerous high-speed car chase that threatens the lives

16

of innocent bystanders does not violate the Fourth Amendment, even when it

places the fleeing motorist at risk of serious injury or death.”).

In 2014, the Supreme Court analyzed qualified immunity in the context

of a “dangerous car chase” strikingly similar to the one at issue here. Plumhoff

v. Rickard, 572 U.S. 765, 768 (2014). In Plumhoff, an officer stopped a suspect

for a non-dangerous offense—having a headlight out. After asking some

questions and seeing a large indentation in the windshield, the officer became

suspicious and asked the suspect to exit his car. Id. at 769. The suspect did not

comply and sped away. Id. The officer and five others engaged the suspect in a

chase that lasted over five minutes and reached speeds of over 100 miles per

hour. Id. at 769, 776. The suspect hit at least three police cruisers, one of which

caused the suspect’s car to stop momentarily. Id. at 776.

When the suspect’s car was at a near standstill, an officer fired three

shots into the car. Those initial shots did not end the chase because the suspect

was “obviously pushing down on the accelerator [and] the car’s wheels were

spinning.” Id. After the suspect started moving again, officers fired twelve more

shots, causing the suspect to lose control and crash into a building. Id. at 770.

The suspect and his passenger died. Id. In concluding the officers acted

reasonably in using deadly force, the Court reasoned as follows:

Under the circumstances at the moment when the

shots were fired, all that a reasonable police officer

17

could have concluded was that [the suspect] was intent

on resuming his flight and that, if he was allowed to

do so, he would once again pose a deadly threat for

others on the road. [The suspect’s] conduct even after

the shots were fired—as noted, he managed to drive

away despite the efforts of the police to block his

path—underscores this point.

Id. at 777. Additionally, the Court held there was no clearly established law

that precluded the officer’s conduct at the time. Id. at 779.

Similarly, the Eleventh Circuit has emphasized that it has “consistently

upheld an officer’s use of force and granted qualified immunity in cases where

the [suspect] used or threatened to use his car as a weapon to endanger officers

or civilians immediately preceding the officer’s use of deadly force.”

McCullough, 559 F.3d at 1207. In McCullough, an officer attempted to initiate

a traffic stop because the suspect’s window tint was too dark, and the officer

suspected the driver of having recently participated in a drug deal. Id. at 1202.

The suspect fled instead of pulling over. He traveled up to sixty miles per hour,

drove through an intersection, and pulled into a parking lot where he lost

control of the vehicle, causing it to fishtail, spin, and then stop. Id. at 1203.

Once the suspect was stopped, an officer exited his police cruiser,

approached the suspect’s car, and ordered the suspect to show his hands. The

suspect did not comply. Id. After another officer arrived, the officers heard the

engine revving and the tires spinning. The officers each fired through the

18

driver’s side window, but the suspect was able to reverse the car and flee,

nearly hitting one of the officers in the process. Id. Both officers followed the

suspect’s vehicle on foot, firing more shots, and the suspect’s car finally came

to a stop. Id. at 1204. “The entire incident took place over a very short period

of time”: about twenty seconds. Id. at 1204 n.3. The suspect, who was unarmed,

died at the scene. Id. The court held the use of deadly force was reasonable

because of the suspect’s “initial attempts to evade police, his failure to heed

police warning of the potential use of deadly force, his later attempt to drive a

truck towards an officer on foot, and his still later apparent attempt to drive

away from officers toward the exit of the parking lot.” Id. at 1208.

Applying the above legal principles, the Court finds Defendant Smith’s

conduct on April 27, 2015, was objectively reasonable. Additionally, there was

no binding precedent in 2015 that would have alerted Defendant Smith his use

of deadly force was not justified under the rapidly evolving, dangerous

circumstances he and other officers confronted that day. Defendant Smith

knew Plaintiff was suspected of committing an armed robbery involving

possible assault and, with that knowledge, observed Plaintiff drive recklessly

for two miles, endangering the lives of other drivers, a pedestrian, and the

officers pursuing him. Defendant Smith also observed Plaintiff drive through

construction barricades and reach up to eighty miles per hour on a residential

19

street, nearly hit another officer with his truck, and attempt to continue his

flight even after the truck skidded to what appeared to be a momentary stop.

Under these circumstances and like the Eleventh Circuit held in a case with

nearly identical facts, the use of deadly force was objectively reasonable to end

the high-speed, dangerous car chase. See McCullough, 559 F.3d at 1207.

The facts here suggest Plaintiff posed even more of a threat than did the

suspect in McCullough. In that case, the officers had no reason to believe the

suspect was armed, nor had they received reports that the suspect had

assaulted or attempted to harm anyone, id. at 1202, whereas here, the 911

dispatch operator relayed to officers that Plaintiff was believed to have a knife,

which he had used to threaten Walmart employees, see Def. Exs. 16, 17.

Additionally, Defendant Smith observed Plaintiff’s reckless driving for almost

two miles during which time Plaintiff endangered the lives of officers and

others: he ran two red lights, one at a busy intersection; nearly hit a pedestrian;

barreled through construction barricades on a residential street; and nearly

hit an officer. The officers in McCullough, however, resorted to force after

observing the suspect drive through an intersection and a parking lot. See 559

F.3d at 1203.

Notably, Plaintiff concedes Defendant Smith’s initial shots were justified

because Plaintiff almost hit Officer Kopinski. See Pl. Resp. at 13. However, he

20

contends, the subsequent two shots that struck him were not justified because

the “truck was stationary and unable to extract itself from the ditch.” See Pl.

Resp. at 16. Thus, according to Plaintiff, he was no longer “gravely dangerous”

at the time the second round of shots were fired. Id. at 7 (citing Penley v.

Eslinger, 605 F.3d 843, 845, 851 (11th Cir. 2010) (holding an officer acted in

an objectively reasonable manner when he used deadly force to subdue a

student who threatened other students and officers with what later turned out

to be a fake gun)).

Characterizing Defendant Smith’s initial and subsequent series of shots

as separate, isolated incidents, Plaintiff attempts to distinguish the Plumhoff

case by arguing that any threat of continued flight ended when the truck

landed in the ditch. Id. at 9 (citing Plumhoff, 572 U.S. at 777 (noting the

outcome may have been different had the initial shots fired at the suspect

“clearly incapacitated” him and “ended any threat of continued flight”)).

Plaintiff argues that the truck could not possibly have driven out of the ditch

because the truck’s tires were bald, and the ditch’s angle was too steep. Id. at

14.

Plaintiff’s suggestion that Smith’s initial and final shots constitute

separate, independent uses of deadly force is misguided. The suspect in the

Plumhoff case advanced a similar argument, suggesting the firing of fifteen

21

shots was excessive, even if some force, initially, was justified. See 572 U.S. at

777. The Court rejected that argument, holding, “[I]f police officers are justified

in firing at a suspect in order to end a severe threat to public safety, the officers

need not stop shooting until the threat has ended. . . . [I]f lethal force is

justified, officers are taught to keep shooting until the threat is over.” Id. See

also Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002) (holding the use

of deadly force was reasonable under the circumstances because the suspect’s

“car was stopped for, at most, a very few seconds when shots were fired[,

meaning] no cooling time had passed for the officers in hot pursuit”).

Upon review of the dash-cam video, only about thirteen seconds elapsed

between when Defendant Smith fired the initial shots and when he fired the

final two that hit Plaintiff, ending the chase. See Def. Ex. 19. And, during those

thirteen seconds, Plaintiff never showed an intent to submit to police authority.

Even though the truck came to a stop, Plaintiff admittedly revved the engine

in an apparent attempt to continue his flight and, aside from Plaintiff’s

conjecture, there is no evidence the officers could have or should have known

the car chase, or Plaintiff’s threat, had ended. Moreover, after the truck

skidded into the ditch, only a few seconds elapsed before Defendant Smith fired

the final two shots. See Def. Ex. 19. See also Def. Ex. 18 ¶ 26.

22

In such a rapidly evolving, dangerous situation, Defendant Smith could

not have been expected to assess the physical capabilities of the truck or

evaluate the likelihood of it getting out of the ditch. Plaintiff’s after-the-fact

speculation that it was impossible for the truck to continue moving after it

landed in the ditch improperly asks the Court to view the situation “with the

20/20 vision of hindsight.” See Graham, 490 U.S. at 396. The relevant inquiry

is one of objective reasonableness, considering the circumstances and the split-

second decision-making officers must make in tense, dangerous situations. Id.

at 396-97.

Moreover, Defendant Smith and Officer Kopinski maintain the threat,

from their perspective at the time, was not over after Plaintiff’s truck landed

in the ditch. Indeed, in his response to Plaintiff’s request for admissions,

Defendant Smith denied that the “ditch’s angle and position of the drive tire

[sic] was such that it made it unlikely that it could exit the ditch on its own

power.” See Def. Ex. C ¶ 71. Similarly, Officer Kopinski said in response to a

discovery request that he believed “it was possible and reasonably likely that

the black truck could have exited the ditch on its own power.” See Pl. Ex. E ¶

36.

23

Like the circumstances here, when the officers in Plumhoff fired shots at

the suspect, the truck was not moving, but the suspect exhibited an intent to

continue driving. See 572 U.S. at 776. The Court reasoned as follows:

[The suspect’s] outrageously reckless driving posed a

grave public safety risk. And while it is true that [his]

car eventually collided with a police car and came

temporarily to a near standstill, that did not end the

chase. Less than three seconds later, [the suspect]

resumed maneuvering his car. Just before the shots

were fired, when the front bumper of his car was flush

with that of one of the police cruisers, [the suspect] was

obviously pushing down on the accelerator because the

car’s wheels were spinning, and then [the suspect]

threw the car into reverse ‘in an attempt to escape.’

Thus, the record conclusively disproves [his] claim

that the chase in the present case was already over

when [the officers] began shooting.

Id. at 776-77 (emphasis added). In Plumhoff, the Court explicitly held the

officer was justified in shooting while the vehicle’s tires were merely spinning

given the suspect was clearly attempting to continue his efforts. Id. This is

precisely what happened in this case—Plaintiff’s truck came to a stop, but his

tires were spinning, indicating he was attempting to continue his flight.

Defendant Smith’s first round of shots did not clearly incapacitate

Plaintiff, force his surrender, or end his threat of continued flight. Instead, like

the suspect in Plumhoff, Plaintiff “never abandoned his attempt to flee.” Id. at

777. Even though Plaintiff now, after the fact, believes the truck could not

possibly have driven out of the ditch, it was reasonable for the officers to have

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perceived a continued threat in Plaintiff’s clear attempt to keep driving. That

the threat of continued flight may not have been “real”—because, as Plaintiff

asserts, it would have been impossible to get out of the ditch—does not mean

it was not objectively reasonable for Defendant Smith, in the moment and in

light of what he knew and witnessed, to have believed it was. See, e.g., Penley,

605 F.3d at 851 (holding the officer’s belief that a fake gun was real was

objectively reasonable under the circumstances); Pace, 283 F.3d at 1282, 1283

(holding reasonable officers who witnessed the fleeing-suspect’s hazardous

driving during a long car chase could have perceived the threat was not over

even though the suspect’s car had come to a stop seconds before officers shot

him).

Accepting that Defendant Smith opened the truck door and made eye

contact with Plaintiff does not alter the analysis. Indeed, the officer in

McCullough, before shooting, made “eye contact” with the suspect through the

truck’s windshield and told the suspect to show his hands, but the suspect

made no effort to comply. See 559 F.3d at 1203. Plaintiff does not contend that,

when Defendant Smith opened the door, he had his hands raised, told

Defendant Smith he would surrender himself to police, or otherwise indicated

he was giving up. On the contrary, Plaintiff, in his own words, “‘gunned’ the

engine in an attempt to flee.” See Pl. Resp. at 2. There is no evidence Defendant

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Smith, with a brief glimpse inside the truck, was able to deduce that Plaintiff

could not have dislodged the truck from the ditch or was no longer a threat.

See id.

Finally, accepting as true that neither Defendant Smith nor Officer

Kopinski yelled for Plaintiff to show his hands or orally threatened the use of

deadly force, the binding precedent does not require an oral warning before

officers may use deadly force to end a dangerous car chase.11 Even more, such

a message was communicated to Plaintiff in other ways: both officers pursuing

Plaintiff had their lights and sirens activated, which Plaintiff and his

passenger recognized at the time. See Pl. Ex. G ¶ 5; Def. Ex. 8 at 32.

Additionally, when Plaintiff drove toward Officer Kopinski’s police car,

Defendant Smith fired four shots into the back windshield of the truck, see Def.

Ex. 19, and when that proved ineffective, Smith walked in the direction of

Plaintiff’s truck “with his firearm sighted on the driver’s side door window,”

see Pl. Resp. at 2. Any reasonable person would understand—and, in fact, it

appears Plaintiff did understand in the moment—that the officers were

seeking Plaintiff’s surrender with the implied threat of deadly force being used

for his failure to do so. Plaintiff even alleges in his complaint that the moment

11 And, in fact, in most instances, a car chase does not lend itself to an

oral warning being practical or effective.

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Defendant Smith exited his patrol car at the end of Bonnieview Road, Smith

had “his service weapon displayed,” and “show[ed] [an] intent[] [to] use …

deadly force.” See Am. Compl. at 5-6.

The relevant inquiry under a Fourth Amendment analysis is whether

Plaintiff “would have appeared to reasonable police officers to have been

gravely dangerous.” See Pace, 283 F.3d at 1281. The record amply supports the

answer to this inquiry is “yes.”12 Plaintiff’s conduct of continuing to flee after

Defendant Smith initially fired shots at the back windshield “underscores the

point” that Plaintiff was “intent on resuming his flight and that, if he was

allowed to do so, he would once again pose a deadly threat for others on the

road.” See Plumhoff, 572 U.S. at 777 (emphasis added).

Given the circumstances Defendant Smith faced and the conduct he

observed, the Court cannot conclude his actions were objectively unreasonable.

Additionally, even if, for argument’s sake, Defendant Smith violated federal

law, he is entitled to qualified immunity because he did not violate clearly

established federal law. As such, Defendant Smith’s motion is due to be

granted.

12 The Honorable Robert M. Foster, who sentenced Plaintiff, even

characterized the incident as one that “carried a magnitude of seriousness that

is almost unique,” noting that in his twenty-one years on the bench, he had

seen “very few other incidents that compare with [Plaintiff’s].” See Def. Ex. 35

at 33-34.

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Accordingly, it is

ORDERED:

1. Defendant Smith’s motion for summary judgment (Doc. 37) is

GRANTED.

2. The Clerk is directed to enter judgment in favor of Defendants

Smith, Lee, and Kopinski, see Order (Doc. 69), terminate any pending motions

as moot, and close the case.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of March

2021.

4 ¢ Do

af J. DAVIS

United States District Judge

Jax-6

Cc:

Randy Scott Lingelbach, Jr.

Counsel of Record

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