Banuchi v. City of Homestead

United States District Court

for the

Southern District of Florida

Altagracia Banuchi, as personal )

representative of the estate of )

Edward Blanton Foster III, and on )

behalf of the survivors of the )

estate, E.F., J.F., A.D.F., N.F., )

Civil Action No. 20-25133-Civ-Scola

M.F., and A.B.F., Plaintiff, )

)

v.

)

City of Homestead and Anthony )

Green, Defendants. )

Order Granting the Defendants’ Motion for Summary Judgment

The controversy in this case centers on, primarily, whether Edward

Blanton Foster III was armed and drew his gun prior to being shot and killed

by Homestead police officer Defendant Anthony Green. After two rounds of

motions to dismiss, two claims remain: a § 1983 claim alleging excessive force

against Green, under the Fourth Amendment; and a state-law battery claim

under Florida’s Wrongful Death Act, asserted against Green and, alternatively,

the City of Homestead (the “City”). The Defendants now seek summary

judgment, arguing Green is entitled to qualified immunity as to the § 1983

claim; Green is entitled to sovereign immunity as to the battery claim; and in

any event, the battery claims against Green and the City are barred by Florida

law. (Defs.’ Mot. for Summ. J., ECF No. 60; Defs.’ Stmt. of Facts, ECF No. 59.)

Plaintiff Altagracia Banuchi, as personal representative of the estate of Edward

Blanton Foster III, and on behalf of the survivors of the estate, E.F., J.F.,

A.D.F., N.F., M.F., and A.B.F., opposes the motion (Pl.’s Resp., ECF No. 65;

Pl.’s Stmt. of Facts, ECF No. 64), arguing, principally, Green had no reasonable

suspicion to support his initial investigatory stop of Foster and, thereafter,

Green’s use of lethal force was excessive because Foster was unarmed and,

therefore, never a threat to Green. The Defendants have timely replied. (Defs.’

Reply, ECF No. 68; Defs.’ Reply Stmt., ECF No. 67.) After careful review, the

Court finds the Defendants have carried their burden and Banuchi has not

come forward with evidence establishing a genuine issue of material fact,

requiring resolution of this case through trial. Accordingly, the Court grants

the Defendants’ motion for summary judgment (ECF No. 60).

1. Background!

On July 16, 2015, a dispatch call was transmitted through the City’s

police radio system, alerting that a “light-skinned male that was seen that had

a firearm” “wearing red basketball shorts and a — a white or black shirt.” (Defs.’

Stmt. J 1.) According to the dispatch, the armed man was seen in Blakey Park

and then walking east. (Id.) Although the parties dispute which direction Green

traveled from, neither side disputes that Green, alone, in uniform, and in a

marked City police car, responded to the call and headed towards the

referenced area, near the corner of Redland Road (which runs north/south)

and Lucy Street (which runs east/west).? (Id. Jf 4, 6; Pl.’s Stmt. 4 4; Ex F,

Aerial Map View, ECF No. 58-6.) The aerial photo, below, depicts the

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As Green neared the area, he saw Foster—“a light-skinned black male,”

“wearing a black shirt and red basketball shorts’— whose location and

appearance matched the dispatch alert. (Defs.’ Stmt. 94 8, 13, 16; Pl.’s Stmt.

1 Except where indicated, the facts are undisputed.

2 In this order, the Court will use these street names but Redland Road is also called SW 187%

Avenue and SW 14 Avenue and Lucy Street is also called SW 328 Street and SW 8 Street,

throughout the parties’ briefing and the record. (Defs.’ Stmt. 74 3, 5.)

8 (disputing, again, the direction of Green’s travel but not disputing Green’s

initial observation of Foster); ¶ 16.3)

As the paths of the two men converged, Foster was walking towards the

southeast, just east of Redland Road, towards the north face of an abandoned

building (shown with a pink roof in the aerial photo, above) on the northeast

corner of the intersection of Redland Road and Lucy Street. (Defs.’ Stmt. ¶ 9.)

To Green, Foster appeared nervous and agitated, walking at a quick pace and

repeatedly looking over his left shoulder, with the left side of his shorts

partially pulled down, as if holding a heavy object. (Id. ¶ 11.) In Green’s

experience, the appearance of Foster’s gym shorts was consistent with someone

carrying a firearm in their shorts. (Id. ¶ 12.) Green says that based on the

totality of the circumstances, known to him at the time, he decided to conduct

an investigatory stop. (Id. ¶ 17; see also Green Dep. at 150:7–9 (testifying that

the area “has had its share of altercations and shootings”).)

Green, in his squad car, approached Foster, with both front windows

down, near the north end of the abandoned building. (Defs.’ Stmt. ¶¶ 18, 22.)

As he approached, Foster was startled. (Id. ¶ 19; Pl.’s Stmt. ¶ 69.) According to

Green, he and Foster then made eye contact, as the front of Green’s car pulled

within less than ten feet of Foster. (Defs.’ Stmt. ¶¶ 20–21.) Green then drew his

gun, pointing it through the windshield, yelling to Foster, now directly in front

of the car, “Please let me see your hands! Put your hands up!” (Id. ¶ 23.)

Refusing Green’s commands, and while facing the right side of the front of

Green’s car, Foster reached across the front of his body with his right hand and

retrieved a gun.4 (Id. ¶¶ 24–5.) Green’s description of the gun was consistent

with the gun that was later recovered from the scene. (Id. ¶¶ 26–27.)

After pulling the gun from his shorts, Foster held it in his right hand,

pointing down, towards the front bumper/grill area of Green’s car. (Id. ¶ 28.) As

3 Although Banuchi appears to quarrel with whether Foster was actually “light skinned,” she

provides no record citation for her unsupported challenge. (Pl.’s Stmt. ¶ 16.) Accordingly, the

Court finds the description of Foster’s skin color, and Green’s perception thereof, undisputed

for the purposes of evaluating the Defendants’ motion. Further, there is no dispute that the

dispatcher described the person in the call as “light-skinned.” Lastly, even if Banuchi’s

description of Foster as having a “medium complexion” was supported by the record, the Court

finds the distinction immaterial: at bottom, Banuchi provides no basis to challenge the

Defendants’ position that Green’s observations of Foster, as he approached the area, were

consistent with the dispatch call’s description.

4 In his sworn statement, Green said Foster retrieved a gun from the waistband of his shorts,

from the left side of his body. (Green Stmt. at 9.) In the deposition testimony the Defendants

point to, however, Green said Foster “retrieve[d] the firearm from the right-side hip area.”

(Green Dep. 178:20–5.) Neither party has flagged this discrepancy as significant and, without

more, the Court assumes Green misspoke when referencing Foster’s right, as opposed to left,

hip area.

Foster held the gun, Green began yelling to him, “Drop the gun!” (Id.)

Hesitating for just a moment, Foster turned and began running along the north

side of the abandoned building, eventually rounding the northeast corner. (Id.

¶ 29.) Green, with his gun still drawn, now pointed through the open

passenger-side window, followed Foster, in his car, shouting at Foster to stop

running and to drop his gun. (Id. ¶ 30.) Despite Green’s commands, Foster

moved the gun, still in his right hand, across his body, twisting his torso

around toward the left, instantly pointing the gun at Green. (Id. ¶ 33.) At this

point Foster was between the east side of the abandoned building and the

passenger side of Green’s car, with Foster positioned at a two o’clock angle,

relative to Green. (Id. ¶¶ 31–2.) Fearing for his life, Green fired his gun,

discharging it eight times, through his open passenger-side window, striking

Foster. (Id. ¶ 34–6.) Mere seconds had passed between the time Green first

pursued Foster and the shooting. (Id. ¶ 52.) As Foster began to buckle towards

the ground, Green realized he had struck Foster, and stopped firing. (Id. ¶ 38.)

Green also heard the sound of Foster’s gun hit the concrete as it fell from his

hand. (Id. ¶ 39.) Foster had not fired any shots. (Id. ¶ 37.) Although Green

believed any imminent, lethal threat had been neutralized, he continued to

keep his gun drawn and ordered Foster to drop his weapon, as he exited his

car, cautiously positioning himself behind the engine area of his vehicle. (Id.

¶¶40–1.) Green then advised over the radio, “Shots fired. Subject down with a

gun,” and relayed his location. (Id. ¶ 42.) Later, of the eight bullet casings, six

were collected from inside Green’s car, one was collected from Green after he

found it, wedged in his gun belt, and the other was collected from the ground,

outside of Green’s car, just to the west, near the front, passenger-side window

of the squad car. (Id. ¶¶ 53–5; Pl.’s Stmt. ¶ 53.)

In the meantime, another Homestead police officer, Daryl Mays, also

responded to the call. (Defs.’ Stmt. ¶ 43.) Because of his location and the

timing of his arrival, however, Mays did not witness Green’s actually firing at

Foster. (Id. ¶ 44)5 However, Mays heard Green’s call out of “shots fired” and so

had his gun drawn as he proceeded, from the north face, around to the east

face of the building, and onto the scene. (Id. ¶ 45.) As Mays rounded the

corner, he saw Foster going to the ground. (Id. ¶ 46–7.) Mays also noticed the

gun, lying next to Foster, and kicked it away, out of Foster’s possible reach. (Id.

¶ 46–7.) Neither Green nor Mays touched the gun after this and it was later

collected by investigating officers from the Miami-Dade Police Department. (Id.

5 The exact timing of Mays’s arrival on scene appears disputed but the parties do not disagree

that Mays did not witness Green’s shooting of Foster. (Pl.’s Stmt. ¶¶ 44–6.) Accordingly, even if

the parties dispute exactly when Mays arrived, in relation to the shooting, the Court does not

find the factual quarrel material.

¶¶ 50–1.) Mays handcuffed Foster, initially, but when it became apparent

Foster was having trouble breathing, he removed the handcuffs and both Mays

and Green began rendering aid. (Id. ¶¶ 48–9.)6 There is no dispute that Green

shot Foster eight times, in the back, in broad daylight. (Pl.’s Stmt. ¶ 73.) At

least seven of those bullets hit Foster on the left half of his body. (Id. ¶ 74;

Defs.’ Stmt. ¶ 74.)

Aside from the factual disagreements highlighted above, Banuchi also

frames disputes with the vast majority of the remainder of what is set forth

above as well. Her disputes, however, are largely unsupported, as more fully

explained below.

To start, Banuchi says she disputes Green’s initial observations of

Foster, but the support she points to is lacking. (Pl.’s Stmt. ¶ 11.) For example,

she cites to the deposition of Julius Hall, a bystander seated in a car, three or

so vehicles back from the intersection, heading eastbound on Lucy Street,

waiting for the light to change, when he observed Green and Foster. (Hall Dep.,

ECF No. 63-29.) In the testimony Banuchi cites, Hall says he saw Foster

crossing a street, and that he “was just walking normally, like I see a

pedestrian walking.” (Id. 15:23–24.) But Hall says he saw Foster before he saw

Green arrive to the area and counsel made no effort to clarify whether Hall was

able to opine on Foster’s actual demeanor at the time Green would have first

observed him. Further, Hall’s description of Foster, from a distance, as

“walking normally,” does not controvert Green’s perception of Foster as being

nervous and agitated: one can walk normally while manifesting nervousness

and agitation. Hall’s testimony simply cannot support Banuchi’s apparent

contention that, at no point, as Green approached Foster, did Foster look

suspicious or nervous. Further, Banuchi fails to provide any record support for

her bald assertion that “Green did not see a heavy object holding down the left

side of Foster’s gym shorts.” (Pl.’s Stmt. ¶ 11.) And, finally, Banuchi’s reliance

on record evidence from the medical examiner showing that “[n]othing heavy

was ever recovered from Foster’s pockets” is nonsensical: the “heavy object”—

the gun—was recovered from the ground, at the scene of the shooting. (Id.)

Further, whether or not something was “recovered from Foster’s pockets” by

the medical examiner, four hours after the shooting, has no bearing on whether

Green perceived that Foster’s shorts were being “partially pulled down, as if

they were holding a heavy object” upon first encountering him.

6 Banuchi disputes this, quibbling that Green didn’t actually render any aid, only handing

Mays supplies as Mays rendered aid. (Pl.’s Stmt. ¶ 49.) Such a nuance does not rise to the level

of a genuine dispute of a material fact.

Similarly, Banuchi also maintains that Green’s statement that, in his

“experience, the appearance of [Foster’s] gym shorts was consistent with an

individual carrying a firearm in their shorts” is disputed. (Pl.’s Stmt. ¶ 12.) But

nothing she presents actually has anything to do with Green’s experience and

how that experience shaped his conclusions about what Foster may have been

carrying.

Banuchi also marks as disputed the Defendants’ statement that Green

decided to conduct an investigatory stop “based on the totality of the

circumstances known to [him] at that time.” (Id. ¶ 17.) In support, she cites to

various excerpts of Green’s deposition testimony. (Green Dep. at 149:17–

151:23; 158:2–160:15; 168:1–21; 169:3–15.) Nothing from that testimony,

however, contradicts the Defendants’ statement that Green decided to conduct

an investigatory stop “based on the totality of the circumstances known to

[him] at that time.” Instead, in the testimony Banuchi highlights, Green

recounted the particulars of the dispatch call, acknowledged that the

dispatcher did not identify any particular crime that had been committed,

confirmed (repeatedly) that—upon initially encountering Foster—Green did not

personally witness Foster committing a crime, and described his policing

concerns about the report of a man at Blakey Park with a gun. (Id. at 149:17–

151:23; 158:3; 168:1–21; 169:3–15.) None of this testimony, importantly,

contradicts, or even calls into question, what Green says prompted him to

conduct an investigatory stop of Foster.

Banuchi also says she disputes the Defendants’ description of how

Foster and Green’s initial encounter unfolded, but the nature of her dispute is

hazy as well as inconsistent. (Pl.’s Stmt. ¶¶ 18–20.) For example, she asserts

that another officer and various bystanders’ accounts contradict Green’s

statement that Foster initially ran towards the southeast. (Id. ¶ 18.) In support,

however, Banuchi cites to testimony that, notably, doesn’t have any bearing on

what direction Foster may have been running when Green first saw him. (E.g.

T. Barnes Dep., ECF No. 63-31, 13:9–16 (describing the direction a police car

was traveling when the deponent neared the scene); D. Barnes Dep., ECF No.

63-32, 13:6 – 19 (same); Hall Dep., ECF No. 63-29, 26:9–20 (same); Mays Dep.,

ECF No. 63-6, 74:3–15 (describing the direction Foster was running when Mays

initially observed him, before Mays had turned to head southbound onto

Redland Road).) What’s more, Banuchi previously agreed with the Defendants

that, at least initially, Foster was traveling southeast, towards the vacant

building. (Pl.’s Stmt. ¶ 9.)

Banuchi also maintains that whether Foster was startled by Green and

whether or when the two made eye contact is disputed. (Id. ¶¶ 19–20.) She

contradicts herself, later, though, in her statement of facts when she explicitly

concedes that, in fact, “Green’s show of force startled Foster.” (Id. ¶ 69.)

Further, the bystander testimony she cites, in support of her position that

Foster was not startled, fails to, in any event, legitimately bolster her

contention. Instead, that bystander, Alexander Gutierrez, driving north on

Redland Road at the time of the incident, merely outlines the dynamics of how

he remembered Green’s approaching Foster: notably, Gutierrez doesn’t offer

any insight as to whether Foster was startled or not. (Gutierrez Stmt., ECF No.

63-2, 1.) Similarly, although Gutierrez describes an instant when he perceived

Green and Foster to have made eye contact, prior to Green’s directly

approaching Foster, that does not actually contravene Green’s description of

making eye contact with Foster upon approaching him. And, even if it could

somehow be interpreted as conflicting with Green’s version, any discrepancy is

undercut by Gutierrez’s admittedly conjectural recollections: much of his

statement about the pair’s initial contact is framed in speculation, with

Gutierrez’s frequently couching his narration of events with “I guess” or

“probably.” (Id.)

Unsurprisingly, Banuchi also takes issue with the way the Defendants

describe the moments that directly preceded the shooting itself. (Pl.’s Stmt. ¶¶

23–30, 44.) The problem with much of the evidence Banuchi relies on, however,

is that she, again, attempts to equate a bystander’s not happening to have

witnessed or described an event to that event’s never happening at all, outside

of the bystander’s perception or recollection. For example, Banuchi’s reliance

on bystanders Hall and Gutierrez’s testimony about seeing Foster run from

Green’s car (Id. ¶¶ 23, 28), does not contradict Green’s testimony that he drew

his gun, pointed it through his windshield towards Foster, and then yelled,

“Please let me see your hands! Put your hands up.” Nor do Hall and Gutierrez’s

recollections refute Green’s testimony that Foster then pointed his gun

downward, towards the front bumper/grill area of Green’s car as Green yelled

at him to drop it. Further, Banuchi does not appear to refute Green’s having

shouted at Foster to show his hands but, rather, instead, says only that

“[t]here is no evidence Foster heard Green.” (Def.’s Stmt. ¶ 24.) The corollary to

this, of course, is that there is also no evidence Foster did not hear Green. And,

in any event, Banuchi provides no record support for her statement. Also of

note is that many of the bystander witnesses were at appreciable distances

from Green and Foster and in their cars, making it unsurprising that they did

not hear Green’s commands to Foster. Importantly, whether by design or

inadvertence, Banuchi did not ask a single one of the witnesses whether they

could say for certain, based on their respective locations in relation to the

scene, whether or not Green ever shouted any commands to Foster. Without

more, that these bystanders did not report hearing Green shout any commands

does not amount to evidence conflicting with Green’s testimony that he did—no

matter how favorably to Banuchi the Court views the record.

Similarly, the support Banuchi looks to in bolstering her insistence that

Foster never had a gun, either in his shorts or in his hand, never pulled a gun

out of his shorts, and never pointed his gun at Green is also unavailing. (See,

e.g., Pl.’s Stmt. ¶¶ 11–12, 25–28, 30, 33–35, 37, 39, 40–41, 50–51, 70, 72.) For

example, Banuchi points to testimony from Tyquana Wright, who testified that

she saw Foster, just prior to the shooting, at nearby apartments. In doing so,

Banuchi highlights two lines from Wright’s nine-page statement where she says

she did not see the gun itself. Banuchi’s presentation is remarkably deceptive,

if not wholly disingenuous: despite not directly seeing the gun itself, Wright

testified repeatedly that, when she observed Foster, whom she described as

acting erratically, he indeed had a gun, though it was concealed by his

clothing. (Wright Stmt. at 3:23; 4:2, 8–9; 5:8–10.) That is, what Banuchi fails to

make clear is that, although Wright did not “see” the gun itself, she

nonetheless perceived “[h]e was clutching a gun under his shirt.” (Wright Stmt.

at 3:23; see also id. 4:8–9; 5:8–10.) Additionally, the testimony Banuchi relies

on from Gutierrez, Hall, Rogers, and Mays is not actually inconsistent with

Green’s testimony. First, none of those witnesses actually observed the entire

encounter between Foster and Green, all of them losing sight of Foster at

various points during the incident and the events leading up to it. Second,

while a witness may not have necessarily seen or even perceived the gun, the

Court cannot, from that, even reading the evidence in the light most favorable

to Banuchi, make the inferential leap that Foster did not at any point have a

gun—either in his shorts or in his hand. Again, no matter how generously the

Court reads the testimony, a witness’s inability to actually view the gun does

not equate to the nonexistence of the gun. That is, a lack of visibility of the gun

to some witnesses, without more, does not amount to genuine dispute of the

Defendants’ description of Foster’s gun, his possession of that gun, or his

handling of that gun.

In the same vein, Banuchi also disputes that Mays ever saw Foster’s gun

on the ground and kicked it away from him. (Pl.’s Stmt. ¶ 47.) But the witness

testimony she relies on is wholly inadequate to introduce a genuine factual

dispute. For example, Hall testified that, as he was driving by, on Lucy Street,

headed eastbound, he did not “see anything around [Foster’s] body.” (Hall Dep.

66:25 – 67:6.) This is not the same as a witness testifying that he, for example,

pointedly scanned the area around Foster’s body and could conclusively opine

that there was, in fact, no gun. Instead, Hall’s testimony amounts to nothing

more than a showing that he himself did not happen to see a gun near Foster

as he was driving by the scene of the shooting, on the opposite side of the

street. Furthermore, the other witness Banuchi relies on never even expressed

any ability to view the location of the actual shooting: based on his statement,

his view of that location would have been either obscured by the abandoned

building or behind him. (Gutierrez Stmt. at 1–3 (e.g. “I couldn’t really actually

see everything . . . .”).)

Relatedly, Banuchi disputes that the Miami-Dade investigators collected

the gun that Foster pointed at Green from the scene. (Pl.’s Stmt. at ¶¶ 50, 75.)

In support, she maintains that “[n]o fingerprints or DNA evidence were found

on the gun collected at the scene that would tie Foster to the gun.” (Id. ¶¶ 50,

75) While the investigative reports indeed ultimately disclosed that “[n]o latent

prints of value were developed” and that “no conclusions can be made

regarding potential [DNA] contributors,” those findings, without more, do not

rule out Foster’s handling of the gun nor do they rise to the level of introducing

a genuine dispute of the Defendants’ evidence as to Foster’s possession of the

gun or where the gun was located when Mays arrived on scene.

Banuchi’s purported disputes as to the Defendants’ description of the

moment of the shooting and the events right afterwards are similarly flawed.

(Pl.’s Stmt. ¶¶ 33, 35.) For example, Banuchi suggests that the Defendants’

description of Foster’s twisting his torso around to his left and pointing his gun

at Green, just before Green fired, is contradicted by the medical examiner’s

report that she says shows “[t]he bullets . . . all entered Foster’s body back to

front, on the left side of his body.” (Id. ¶ 33.) Banuchi’s supposition is

groundless. First, Banuchi’s characterization of the report is inaccurate: one

gunshot wound on Foster’s right side was identified. (Med. Ex. Rep., ECF No.

63-26, 8.) But, more importantly, Banuchi fails to explain what is inconsistent

about the two pieces evidence: without more, both can be true. Relatedly,

Banuchi disputes that Green shot all eight rounds from inside his car because

“[s]hell casings were found outside the vehicle.” (Pl.’s Stmt. ¶ 35.) Again, that

one casing was found just outside Green’s open passenger window and one

was found lodged in his gun belt does not create a genuine dispute as to the

Defendants’ cited testimony that Green shot all eight rounds from his car.

As an additional matter, the Court also finds Terrycal Rogers’s cited

testimony an unworthy source for Banuchi to rely on to refute Green’s

testimony that he fired all eight rounds from inside his car. (Pl.’s Stmt. ¶ 36

(citing Rogers Dep. at 18–23.) First, in referencing five pages of Rogers’s

deposition, the citation violates Local Rule 56.1(b)(1)(B)’s requirement that each

fact must be “supported by specific, pinpoint references to particular parts of

record material” and that “pinpoint references shall reference pages []and line

numbers, if appropriate.” For that reason alone the Court can strike this part

of Banuchi’s statement and thus deem the Defendants’ well supported fact

admitted. L.R. 56.1(c)–(d). More importantly, however, the testimony Banuchi

cites is blatantly contradicted not only by other, incontrovertible record

evidence, but by Banuchi’s own version of the facts. To illustrate, Rogers’s

testimony was that she saw two officers, standing in a “V formation,” yelling at

Foster to get down, just before both simultaneously began shooting at him. She

also testified that there were two rounds of shots—one while she was inside her

office, across Lucy Street; and then a second, when she says she came outside

and witnessed the two officers’ shooting at Foster. This testimony, though, is

wholly at odds with every single other witness’s description of the shooting:

that there was only one round of shots and that only one officer—Green—

actually fired his gun. Rogers’s testimony also directly conflicts with the

physical evidence: again, six casings were found inside Green’s vehicle; one on

the ground, just outside Green’s passenger-side window; and one in his belt.

For the Court to credit Rogers’s testimony—that two officers had been shooting,

at a distance from each other, towards Foster—it would have to either

disregard the physical-casings evidence (which neither party disputes) (see,

e.g., Bello Firearm Rep., ECF No. 63-33, 2 (noting that the eight casings were

fired from Green’s gun)); or make all kinds of unreasonable inferences and

leaps of logic about how the casings—supposedly shot by two different officers,

standing apart from one another—could have possibly all ended up where they

did. Further, Rogers’s testimony is also incompatible with Banuchi’s own

version of the facts: Banuchi herself asserts that “Officer Mays was not even

out of his vehicle when shots were fired. Mays was not near the scene when

shots were fired” (Pl.’s Stmt. ¶ 44) and “Foster was already down when Mays

arrived” (id. ¶¶ 45–6). Lastly, the testimony Banuchi cites from Rogers

describes a fairly protracted exchange between the officers and Foster, where

the officers are both telling Foster to get down, with Foster’s replying, “I ain’t

got shit,” before Foster is shot. (Rogers Dep. 19:17–24.)7 In contrast, Banuchi

herself does not note any dialog right before the shooting and instead says

that, as Foster ran, Green simply “pursued [him] behind an abandoned

building . . . and shot [him] eight times in the back.” (Pl.’s Stmt. ¶¶ 72–3.)

Accordingly, then, despite Rogers’s testimony, the Court finds the Defendants’

statement, that Green fired all eight shots from inside his car, undisputed. See

Hunter v. Leeds, City of, 941 F.3d 1265, 1281 (11th Cir. 2019) (“When one

7 Elsewhere in her deposition, Rogers also describes the exchange between the officers and

Foster as “going back and forth” and that Foster repeatedly told the officers, “I don’t have

anything” and “I don’t have nothing.” (Rogers Dep. 10:21–11:4.) Rogers even testified, later in

her deposition, that she herself interacted with Foster at one point, just before the shooting.

(Id. 41:10–18; 51:6–9, 24–5.) None of this testimony is reconcilable with the rest of the record,

including Banuchi’s own version of events.

party’s version of events 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.”) (cleaned up).

2. Legal Standard

Under Federal Rule of Civil Procedure 56, “summary judgment is

appropriate where there ‘is no genuine issue as to any material fact’ and the

moving party is ‘entitled to a judgment as a matter of law.’” See Alabama v. N.

Carolina, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. Civ. P. 56(a)). At the

summary judgment stage, the Court must view the evidence in the light most

favorable to the nonmovant, see Adickes v. S.H. Kress & Co., 398 U.S. 144,

158-59 (1970), and it may not weigh conflicting evidence to resolve disputed

factual issues, see Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir.

2007). Yet, the existence of some factual disputes between litigants will not

defeat an otherwise properly grounded summary judgment motion; “the

requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the record as a whole

could not lead a rational trier of fact to find in the nonmovant’s favor, there is

no genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

“[O]nce the moving party has met its burden of showing a basis for the

motion, the nonmoving party is required to ‘go beyond the pleadings’ and

present competent evidence designating ‘specific facts showing that there is a

genuine issue for trial.’” United States v. $183,791.00, 391 F. App’x 791, 794

(11th Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

Thus, the nonmoving party “may not rest upon the mere allegations or denials

of his pleadings, but [instead] must set forth specific facts showing that there is

a genuine issue for trial.” See Anderson, 477 U.S. at 248 (citation omitted).

“Likewise, a [nonmovant] cannot defeat summary judgment by relying upon

conclusory assertions.” Maddox-Jones v. Bd. of Regents of Univ. of Ga., 2011

WL 5903518, at *2 (11th Cir. Nov. 22, 2011). Mere “metaphysical doubt as to

the material facts” will not suffice. Matsushita, 475 U.S. at 586.

3. Analysis

A. Officer Green is entitled to qualified immunity as to Banuchi’s

excessive-force claim under the Fourth Amendment.

“Qualified immunity offers a complete protection for government officials

sued in their individual capacities if their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1303

(11th Cir. 2006) (cleaned up). “The purpose of this immunity is to allow

government officials to carry out their discretionary duties without the fear of

personal liability or harassing litigation, protecting 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).

“[T]o receive qualified immunity, the public official must first prove that

he was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Id. The parties do not dispute that, here, Green was

acting within the scope of his discretionary authority. Accordingly, “the burden

shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. In

determining whether qualified immunity is appropriate, courts apply a two-part

test: (1) whether, “[t]aken in the light most favorable to the party asserting the

injury . . . the facts alleged show the officer’s conduct violated a constitutional

right”; and, if so (2) “whether the right was clearly established” at the time of

the violation. Scott v. Harris, 550 U.S. 372, 377 (2007) (cleaned up). Here, the

Court doesn’t reach part two because, in answering part one, the Court finds

no violation of a constitutional right.

Even Banuchi does not argue, based on the undisputed facts as they are

presented above, and read in the light most favorable to her, that Green’s

resort to deadly force was unreasonable. Indeed, she cannot—from the United

States Supreme Court, to the Eleventh Circuit, to district courts in the

Southern District, the caselaw is unwavering: “It is axiomatic that when an

officer is threatened with deadly force, he may respond with deadly force to

protect himself.” Hunter, 941 F.3d at 1279; see also Brosseau v. Haugen, 543

U.S. 194, 197–98 (2004) (“Where the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer or to

others, it is not constitutionally unreasonable to prevent escape by

using deadly force.”) (cleaned up); EH ex rel. Moore v. City of Miramar, 111 F.

Supp. 3d 1307, 1326 (S.D. Fla. 2015) (Zloch, J.) (“Because the Constitution

permits the use of deadly force to prevent a violent suspect from escaping, the

Constitution must also permit the use of deadly force against a suspect who

poses not merely an escape risk (because he is not yet in police control), but

also an imminent threat of danger to a police officer or others.”) (cleaned up).

Nor does Banuchi argue, based on the undisputed facts as they are

presented above, and read in the light most favorable to her, that Green’s

initial investigatory stop of Foster was unreasonable. Again, this is because she

cannot: “an officer may, consistent with the Fourth Amendment, conduct a

brief, investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000); see also Clark v. City of Atlanta, Ga., 544 F. App’x 848, 854 (11th Cir.

2013) (affirming the reasonableness of an investigatory stop, coupled with a

use of lethal force, where officers observed three people, one of whom had his

hands in his pockets, standing in the yard of a vacant home, in a residential

area that had been targeted for burglaries).

Based on Foster’s proximity to Blakey Park—an area known for fights

and shootings—and the direction of Foster’s travel, at the time Green first

observed him, combined with Foster’s appearance matching the reported

description, Green had reason to approach him. As their paths neared, and

Green noticed Foster’s nervous and agitated demeanor and, at the same time,

observed something heavy, partially pulling down his shorts, Green reasonably

perceived that Foster was likely armed and therefore justifiably approached

him with his own gun drawn, commanding Foster to show his hands. See

United States v. Aldridge, 719 F.2d 368, 371 (11th Cir. 1983) (“The use of a gun

in connection with a stop is permissible when the officer reasonably believes it

is necessary for his protection.”); see also Clark, 544 F. App’x at 854 (noting

that “it was reasonable for the officers to believe” that a subject “standing with

his hands in his pockets,” “might have been carrying a weapon,” and that,

therefore, they “were justified in exiting their car with their weapons drawn”).

Thereafter, as Green pursued Foster around to the east side of the abandoned

building, with Foster refusing to heed any of Green’s commands and,

ultimately, aiming his gun at Green, Green was justified in shooting Foster

eight times: Green “was not required to wait and hope for the best.” Jean-

Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (cleaned up); see also

Garczynski v. Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009) (“[W]here

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.”) (“[T]he officer was justified in shooting the

fleeing suspect because the officer could reasonably believe that the man posed

a risk of serious physical injury to the officer and others.”); Plumhoff v. Rickard,

572 U.S. 765, 777 (2014) (“[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.”) (recognizing that “officers are taught to

keep shooting until the threat is over”).

To the extent Banuchi’s opposition to the Defendants’ motion relies on

her insistence that Foster was unarmed and never pointed a gun at Green, it

falls flat, for the reasons set forth above. Additionally, her other arguments are

unavailing as well. In particular, one of Banuchi’s contentions is that Green’s

stop of Foster was not justified because Green did not suspect Foster of having

committed a crime and “carrying a concealed firearm is not sufficient, without

more, to justify a Terry stop.” (Pl.’s Resp. at 11.) But, here, there was more:

there was a dispatch that Green reasonably perceived as describing a subject

who was displaying a gun at a park in a way that warranted police contact

(Green Dep. at 150:25–151:3); the park and nearby area “has had its share of

altercations and shootings” (id. at 150:7–9); when Green initially observed

Foster, who matched the description, he was nervous and agitated, furtively

looking back, over his shoulder (id. at 156:11–12; 175:15–17); and Foster was

startled when he first made eye contact with Green (id. at 174:1–6).

Considering the totality of the circumstances, Green had a well-founded

suspicion of criminal activity. See Burnett, 246 So. 3d at 520 (recognizing that

“furtive behavior” combined with carrying a gun could support an investigative

stop); see also Baptiste v. State, 995 So. 2d 285, 301 (Fla. 2008) (recognizing

that corroborating evidence that goes beyond mere “innocent details,” including

nervousness and indications that a subject possesses a gun, can support an

investigatory stop).

Banuchi also argues that summary judgment is not warranted because

“a jury may reasonably reject Green’s self-defense claim in light of his prior

shootings.” (Pl.’s Resp. at 16.) As Banuchi points out, Green’s shooting of

Foster is his sixth shooting, three of which were fatal, in ten years, making him

responsible for 36% of the entire City’s police department’s uses of deadly

force. (Id.) Green claimed self-defense in each case. Accordingly, says Banuchi,

based on the “doctrine of chances,” “the court may reasonably begin to

question whether Green actually acted in self-defense and whether his use of

force was justified.” (Id. (cleaned up) (quoting United States v. Henthorn, 864

F.3d 1241, 1253–54 (10th Cir. 2017)).) Although the Court certainly finds the

recited statistics, without more, disturbing, Banuchi’s proposition,

nonetheless, falls flat. First, in each case Banuchi highlights, including this

one, the Miami-Dade State Attorney’s Office found Green’s use of force

justified. (Defs.’ Reply at 2.) Further, the Court does not find the doctrine of

chances applicable here. The doctrine in an evidentiary standard that may

apply to admit other-act evidence where there is “a string of improbable

incidents” that are “unlikely to be the result of chance.” Henthorn, 864 F.3d at

1252 n.8. But Banuchi provides no support for her contention that these

shootings are so improbable that the doctrine should apply. Indeed, there is no

dispute that all six shootings occurred while Green was on duty, as a law

enforcement officer, carrying a firearm as part of his duties in policing crime in

dangerous settings. It is not by mere chance that a police officer would be faced

with multiple scenarios in which he encounters situations where the need to

use lethal force for the defense of himself or others would arise. Graham v.

Connor, 490 U.S. 386, 396–97 (1989) (“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.”).

In sum, after viewing the evidence in the light most favorable to Banuchi,

the Defendants have established that Green is entitled to summary judgment

as to Banuchi’s § 1983 excessive force claim.

B. The Defendants are entitled to summary judgment on Banuchi’s

state-law wrongful-death claims.

Banuchi premises her claims under Florida’s Wrongful Death Act against

Green and the City on a theory of battery. Accordingly, the municipal liability

provisions of Florida Statutes section 768.28 apply. Under section 768.28(9)(a),

Green may be held personally liable only if he “acted in bad faith or with

malicious purpose or in a manner exhibiting wanton and willful disregard of

human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). If he did not act in

any of these ways, however, “the plaintiff’s exclusive recourse is to seek

damages from the governmental entity”—here, the City. Keck v. Eminisor, 104

So. 3d 359, 366 (Fla. 2012). As the Defendants point out, there is no record

evidence showing that Green acted “in bad faith or with malicious purpose or

in a manner exhibiting wanton and willful disregard of human rights, safety, or

property.” (Defs.’ Mot. at 15.) In response, Banuchi does not identify any facts

in the record that Green acted in any of these ways. Instead, she argues that

(1) Green lacked reasonable suspicion to stop Foster; (2) Green did not first talk

to Foster; (3) Foster rightly fled, attempting to escape Green’s threats; (4) Green

improperly pursued Foster; and (5) rather than just running Foster over with

his car, Green instead chose to shoot him in the back. (Pl.’s Resp. at 19.) First,

Banuchi’s version of events is not supported by the record. And, second, once

Foster gave flight, refusing to comply with Green’s commands, and then

pointed his gun at Green, Green was justified in chasing and then shooting

him, even if, in hindsight, less-than-lethal options might have existed. See Long

v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) (concluding the use of deadly

force was reasonable, even though other, potentially non-lethal means of

preventing a suspect’s escape may have existed). Ultimately, Banuchi does not

identify any action taken by Green that would amount to bad faith, malice, or

wanton and willful disregard of human rights, safety, or property. Accordingly,

Green is immune from suit under Florida Statutes section 768.28(9)(a).

For similar reasons Banuchi’s remaining claim, against the City for

vicarious liability, also based on a theory of battery, is barred by Florida

Statutes section 776.05. Under Florida law, a “battery claim for excessive force

is analyzed by focusing upon whether the amount of force used was reasonable

under the circumstances.” City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d

DCA 1996). Importantly, “a presumption of good faith attaches to an officer’s

use of force in making a lawful arrest and an officer is liable for damages only

where the force used is clearly excessive.” Id. And an officer who “reasonably

believes” his use of force is “necessary to defend himself or herself or another

from bodily harm while making [an] arrest” is afforded a complete defense to an

excessive use of force claim. Fla. Stat. § 776.05(1). Since Green would be

entitled to a complete defense under section 776.05, the City is, as well.

Banuchi has not come forward with any evidence to rebut the Defendants’

showing that Green was justified in the use of force against Foster when

Foster’s actions resulted in Green’s reasonable and imminent fear of death or

great bodily injury. Again, Foster gave flight, refused to comply with Green’s

commands, and then pointed his gun at Green. As a result, the City is also

entitled to summary judgment in its favor on Banuchi’s state-law battery claim.

4. Conclusion

The Court recognizes that a “case involving a police officer’s use of deadly

force may present a special concern on summary judgment.” Williams v. Deal,

659 F. App’x 580, 583 (11th Cir. 2016). And it is certainly disturbing when “the

witness most likely to contradict the police officer’s story—the person shot

dead—is unable to testify.” Jd. But, where the other record evidence simply

“doesn’t contradict a police officer’s direct testimony, conjecture cannot create

a genuine issue of material fact.” Id. And, to be sure, here, in order for

Banuchi’s version of the facts to carry the day, even more than conjecture

would be required. Ultimately, the Court is left with the record before it. And

based on that record, the Court is unable to discern how a rational trier of fact

could find in Banuchi’s favor.

Consequently, for the reasons set forth above, the Court grants the

Defendants’ motion (ECF No. 60), granting summary judgment in their favor

on the remaining counts in this case. The Clerk is, thus, directed to close this

case. Any other pending motions are denied as moot. The calendar call set for

June 28, 2022, and trial set for the trial period beginning July 5, 2022, are

hereby canceled.

Done and ordered, in Miami, Florida, on June 17, 2022.

Robert N. Scola, Jr.

United States District Judge