officers shot a man who, after he put a gun to his head, pointed it in the direction of the officers
How later courts described this case
- officers shot a man who, after he put a gun to his head, pointed it in the direction of the officers
- officer had only seconds to react when suspect accelerated his car towards him
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-22254-CIV-GAYLES/MCALILEY
CARMEN RINCON and CARLOS RINCON,
as Personal Representatives of the Estate of
Ethan Rincon, deceased,
Plaintiffs,
vs.
MIAMI-DADE COUNTY, et al.,
Defendants.
_______________________________________/
REPORT AND RECOMMENDATION ON
MOTION FOR SUMMARY JUDGMENT
AND ORDER GRANTING DAUBERT MOTION
Defendants, Sergeant Victor Evans and Officers John Dalton and Brian Zamorski,
of the Miami-Dade Police Department (collectively, “Defendants” or “Officers”), filed a
Motion for Summary Judgment, (ECF No. 157), and a Motion to Exclude Expert Opinions
of John Dale (the “Daubert Motion”), (ECF No. 171). Plaintiffs, Carmen Rincon and
Carlos Rincon, as the personal representatives of the estate of their deceased son Ethan
Rincon (“Plaintiffs”), filed response memoranda in opposition, (ECF Nos. 167, 183), and
Defendants filed reply memoranda, (ECF Nos. 179, 187). The Honorable Darrin P. Gayles
referred all pretrial matters to me. (ECF No. 88). I have carefully considered the parties’
memoranda of law, the pertinent portions of the record and the applicable law. For the
reasons that follow, I recommend that the Court grant Defendants’ Motion for Summary
Judgment, (ECF No. 157), and I hereby grant their Daubert Motion, (ECF No. 171).
I. Summary Judgment
A. Factual Background1
On March 22, 2016, the Officers, who were dispatched to respond to a disturbance
at Plaintiffs’ home, shot and killed 25-year-old Ethan Rincon (“Ethan”). Ethan had
Asperger’s Syndrome, a form of autism. (ECF No. 161 ¶ 9; ECF No. 169 ¶ 9).
Ethan lived with Plaintiffs, his parents, in a house in a quiet residential
neighborhood (the “Rincon home”). (Carmen Rincon Statement at 4:3-13, ECF No. 161-
9); (ECF No. 161 ¶ 39; ECF No. 169 ¶ 39). Ray and Sharon Delgado (“Ray” and “Sharon”)
lived next door, and Lourdes and Jesus Lugo (“Lourdes” and “Jesus”) lived across the
street. (Ray Delgado Dep. at 13:20-14:13, ECF No. 161-13).
1. The long weekend before the shooting
On the Friday through Saturday, March 18-19, 2016, Ethan attended the Ultra Music
Festival in Miami Beach. (ECF No. 161 ¶ 4; ECF No. 169 ¶ 4). He spent the entire weekend
there and returned home Sunday evening. (ECF No. 161 ¶ 6; ECF No. 169 ¶ 6). His parents
described his behavior over the next couple days as “odd” and “out of character”; they said
there was “something wrong” with him and he was “acting weird”. (ECF No. 161 ¶ 8; ECF
No. 169 ¶ 8).
On Monday, March 21, Ethan and his mother got into a loud argument about his
attending the music festival. (ECF No. 161 ¶ 10; ECF No. 169 ¶ 10). Ethan told her to
leave, and both parents left him home, alone, that night. (ECF No. 161 ¶¶ 10-11; ECF
1 Unless otherwise noted, the facts here are taken from the Officers’ Statement of Undisputed
Material Facts and Plaintiffs’ Corrected Response thereto. (ECF Nos. 161, 169).
No. 169 ¶¶ 10-11).
The next day, in the afternoon, Mrs. Rincon returned home. (Carmen Rincon Dep.
at 124:6-14, ECF No. 161-6). She spoke to Ethan briefly and left the house around
4:00 p.m. (Id. at 126:10-13); (Carmen Rincon Statement at 41:2-7, ECF No. 161-9). When
she left, the home was not damaged and was in its normal condition. (Carmen Rincon Dep.
at 127:11-15, ECF No. 161-6).
2. The neighbors call 911
On Tuesday, March 22, around 9:30 p.m., Ray and Sharon (the next-door
neighbors), were inside their home when they heard loud banging noises outside. (ECF
No. 161 ¶ 21; ECF No. 169 ¶ 21). Ray grabbed his handgun and went outside to look. (Id.).
He saw a man wearing a dark hoodie walk from across the street (near the Lugo’s home)
toward the Rincon home, dragging something big. (Id.). Sharon called Mrs. Rincon, who
was not home; Mrs. Rincon said that the man could be her son and that he had been partying
all weekend and might be under the influence of drugs. (ECF No. 161 ¶ 22; ECF No. 169
¶ 22).
Around the same time that Ray and Sharon heard noises, Lourdes and Jesus, who
were inside their home, heard similar sounds outside. (Lourdes Lugo Dep. at 20:13-22,
ECF No. 161-7); (Jesus Lugo Dep. at 17:8-17, ECF No. 161-15). They went out and saw
the man in the dark hoodie; he was pacing back and forth and holding what appeared to be
a weapon in one hand—possibly a bat—and a bottle in the other. (ECF No. 161 ¶ 29; ECF
No. 169 ¶ 29); (Lourdes Lugo Dep. at 22:17-25, ECF No. 161-7). He was also making
unintelligible comments and gibberish sounds. (ECF No. 161 ¶ 29; ECF No. 169 ¶ 29).
They watched as the man walked toward the Rincon home and sat on the front porch.
(Lourdes Lugo Statement at 4:14-21, ECF No. 161-16).
The man then stood up, “grabbed something else” and walked toward Ray and
Sharon’s home next door. (Lourdes Lugo Statement at 6:20-24, ECF No. 161-16). Ray,
who at this point was near the door to his home, saw a shadow move nearby and then heard
a loud banging noise. (Ray Delgado Statement at 5:18-20, ECF No. 161-12). Jesus saw the
man use a weapon to hit Ray and Sharon’s cars, which were in front of their home, and
stated that the man appeared “out of control.” (Jesus Lugo Dep. at 22:19-23, 23:23-24:6,
ECF No. 161-15); (ECF No. 161 ¶ 30; ECF No. 169 ¶ 30).
Ray confronted the man and pointed his gun and flashlight at him. (Ray Delgado
Statement at 6:1-11, ECF No. 161-12). Ray could not identify him but saw that he was
holding a pickaxe and appeared “crazy on drugs evil”. (Ray Delgado Dep. at 34:17-36:1,
ECF No. 161-13); (ECF No. 161 ¶ 24; ECF No. 169 ¶ 24). Ray yelled at him, “what are
you doing? Get back. I have a gun. I’ll shoot.” (ECF No. 161 ¶ 25; ECF No. 169 ¶ 25). The
man said nothing and did not acknowledge the gun. (Id.).2 Instead, the man looked up,
pointed toward the sky, walked to one of Ray’s vehicles and struck it with the pickaxe.
(ECF No. 161 ¶¶ 26, 28; ECF No. 169 ¶¶ 26, 28). Ray went inside and waited until police
arrived. (Ray Delgado Dep. at 45:4-11, ECF No. 161-13).
2 Ray described the interaction like this: “[H]e was either on something or was just evil. He just
wanted to hurt someone ... he just had a glazy look like he was just looking through me. I mean,
he didn’t acknowledge that I had a gun aimed at him, didn’t even flinch, didn’t care, didn’t care
once. I told him, you know, I have a gun, stop what are you doing, you know, leave. He didn’t
care.” (Ray Delgado Statement at 14:21-15:5; ECF No. 161-12).
As this took place, both Sharon and Lourdes called 911. (ECF No. 161 ¶¶ 33-35;
ECF No. 169 ¶¶ 33-35). Lourdes advised the police that there was an unknown male with
a bat who was drinking and assaulting a neighbor, and that the male was hitting her
neighbor’s door with the bat. (ECF No. 161 ¶ 34; ECF No. 169 ¶ 34). She also said that her
neighbor had a fire extinguisher and that the two are “going at it.” (Id.). In Sharon’s call,
she frantically asked for help and stated that there was man wearing a hooded sweatshirt,
armed with an axe. (ECF No. 161 ¶ 35; ECF No. 169 ¶ 35).
A police dispatcher made two calls to the Officers: the first advised of an unknown,
violent male wearing a hoodie and armed with a pickaxe; the second advised of two males
fighting, one armed with a bat and the other with a fire extinguisher. (ECF No. 161 ¶¶ 37-
38; ECF No. 169 ¶¶ 37-38). The dispatcher alerted all units of a “232” in progress, which
is an emergency call about an active assault and battery, that requires lights and sirens.
(ECF No. 161 ¶ 39; ECF No. 169 ¶ 39).
After Sharon hung up with the police, she spoke to Mrs. Rincon on the phone. (ECF
No. 161 ¶ 36; ECF No. 169 ¶ 36). Mrs. Rincon feared for her son, Ethan, and stated that
she did not know where he was and that “she thought maybe her son was in danger from
this [unknown] person.” (Id.) (alteration in original).
3. The Officers and Mr. and Mrs. Rincon arrive
Officers Brian Zamorski (“Zamorski”) and Marlene Taborda (“Taborda”) arrived at
the scene first. (ECF No. 161 ¶ 41; ECF No. 169 ¶ 41). They spoke to Ray, who told them
there was an unknown male in the area, wearing a dark hoodie, who was damaging cars
with a pickaxe. (ECF No. 161 ¶ 42; ECF No. 169 ¶ 42). Ray also told them about his earlier
confrontation with the man, when Ray pointed his gun at him and the man “continued to
do whatever he wanted”. (Ray Delgado Dep. at 50:7-13, ECF No. 161-13). Ray cautioned
them to be “extra safe” with the man “because he obviously didn’t care if weapons were
even drawn”. (Id. at 48:11-19). Zamorski and Taborda searched the area for the man with
flashlights and guns drawn; they did not find him. (ECF No. 161 ¶ 44; ECF No. 169 ¶ 44);
(Zamorski Statement at 8:6-10, ECF No. 161-25).
Officers John Dalton (“Dalton) and Victor Evans (“Evans”) arrived next. (ECF
No. 161 ¶ 45; ECF No. 169 ¶ 45). All four Officers saw several nearby vehicles that had
broken windows and windshields, and tires slashed, consistent with the use of a pickaxe.
(ECF No. 161 ¶ 47; ECF No. 169 ¶ 47). Later, they saw a pickup truck with similar damage
outside the Rincon home. (ECF No. 161 ¶ 53; ECF No. 169 ¶ 53). The truck belonged to
the Rincons. (Evans Dep. at 193:12-21, ECF No. 161-23).
At some point, Ray learned that the suspect could be Mr. and Mrs. Rincon’s son,
and he told the Officers. (ECF No. 161 ¶¶ 49-50; ECF No. 169 ¶¶ 49-50). Ray said that the
Rincon’s son could be in front of or inside the Rincon home, and he led the Officers to the
front of the house. (ECF No. 161 ¶ 50; ECF No. 169 ¶ 50).
Zamorski, Dalton and Evans went to the right side of the house, through an open
gate, to search the backyard, while Taborda stayed near the front of the house. (ECF
No. 161 ¶ 51; ECF No. 169 ¶ 51); (Dalton Dep. at 71:19-25, ECF No. 161-24).
As this happened, Mrs. Rincon arrived and walked through the same gate as the
Officers. (Carmen Rincon Dep. at 133:8-134:4, ECF No. 161-6); (Dalton Dep. at 74:25-
75:5, ECF No. 161-24). Immediately to her left, on the side of the house, she saw her
garden in disarray. (Carmen Rincon Dep. at 194:4-10, ECF No. 161-6). According to Mrs.
Rincon, all her pots had been broken, and her pickaxe was in the garden. (Id. at 194:8-17)
(“First thing I see there is all of my broken pots and then I see my big pickax in there. It
was thrown on the side.”).3
Taborda told Mrs. Rincon that they thought the suspect may be inside her home.
(ECF No. 161 ¶ 58; ECF No. 169 ¶ 58). Mrs. Rincon told the Officers that her son, who
has Asperger’s, should be inside sleeping. (ECF No. 161 ¶ 61; ECF No. 169 ¶ 61); (Carmen
Rincon Statement at 24:8-17, ECF No. 161-9). All Officers and Mrs. Rincon went to the
front of the house. (Dalton Dep. at 76:2-4, 77:18-78:2, ECF No. 161-24); (Carmen Rincon
Dep. at 139:4-11, ECF No. 161-6); (ECF No. 161 ¶ 57; ECF No. 169 ¶ 57).
The front of the Rincon home has a large bay living room window. See (ECF
No. 161-30). Through that window the Officers saw that it was dark inside the house.
(Dalton Dep. at 78:25-79:13, ECF No. 161-24). With flashlights, however, they could see
that the inside had been destroyed: furniture had been broken, there was broken glass, and
the walls had holes and slice marks in them that were consistent with the use of a pickaxe.
(ECF No. 161 ¶ 54; ECF No. 169 ¶ 54). The Officers directed Mrs. Rincon to the window,
so that she could see the damage. (Carmen Rincon Dep. at 137:6-111, ECF No. 161-6);
(Carmen Rincon Statement at 24:20-25:4, ECF No. 161-9). At some point, the Officers
asked Mrs. Rincon about the layout of the home, which she described for them. (ECF
3 As explained in more detail in Section D.1(i), infra, Mrs. Rincon gave that testimony at her April
2021 deposition. Soon after her son’s death in April 2016, in a sworn statement to the Florida
Department of Law Enforcement (“FDLE”), she stated, “that’s where the ax could have been”.
(Carmen Rincon Statement at 48:10-11, ECF No. 161-9).
No. 161 ¶ 80; ECF No. 169 ¶ 80).
Mr. Rincon arrived while the Officers and Mrs. Rincon were at the front of the home.
(Carlos Rincon Dep. at 190:1-2, ECF No. 161-2). He tried to hand his cell phone to the
Officers for them to speak to an attorney, who was on the line, which the Officers would
not do. (Id. at 190:3-11, 191:24-192:24).
One of the Officers led Mr. Rincon to the bay window and showed him the damage
inside his home. (Id. at 194:19-195:22). Mr. Rincon told the Officers that he did not own
any weapons, including an axe. (ECF No. 161 ¶ 63; ECF No. 169 ¶ 63). The Officers did
not ask Mrs. Rincon if she owned any weapons, and she did not offer any information about
weapons. (ECF No. 169 ¶ 63); (Carmen Rincon Aff. ¶ 4, ECF No. 169-2). Mrs. Rincon did
not tell the Officers that she saw a pickaxe outside when she arrived home.
The Rincons advised the Officers that they left Ethan alone in the home and that he
should be sleeping in his bedroom. (ECF No. 161 ¶¶ 60-61; ECF No. 169 ¶¶ 60-61). Mrs.
Rincon repeatedly stated, “there’s something wrong with the house, I thought there was
something wrong with Ethan ... we need to make sure he is safe.” (ECF No. 161 ¶ 67; ECF
No. 169 ¶ 67).
While the Officers talked to Mr. and Mrs. Rincon outside, they heard no sounds
coming from inside the house. (ECF No. 161 ¶ 69; ECF No. 169 ¶ 69). The Officers insisted
that they needed to go in the house because they were concerned for the safety of anyone
inside. (ECF No. 161 ¶ 68; ECF No. 169 ¶ 68).
4. Entry into the home
Mrs. Rincon did not want to let the Officers in, but she felt forced to do so and
allowed them in. (ECF No. 161 ¶ 70; ECF No. 169 ¶ 70) (Carmen Rincon Dep. at 214:6-
9, ECF No. 161-6). She unlocked the front door, let them inside and turned on the living
room light. (ECF No. 161 ¶ 79; ECF No. 169 ¶ 79). The Officers did not allow her to go
further inside. (Id.). The Officers went in with their guns drawn. (ECF No. 161 ¶ 81; ECF
No. 169 ¶ 81).
Mr. and Mrs. Rincon stayed outside near the front door while the Officers searched
the inside. (Carlos Rincon Dep. at 116:24-25, ECF No. 161-2); (Carmen Rincon Statement
at 28:15-30:4, ECF No. 161-9). According to the Officers, they announced themselves as
police officers and called out for Ethan several times, including when they approached his
bedroom door. (ECF No. 161 ¶¶ 82, 87, 93). The Rincons, however, did not hear anything.
(ECF No. 169 ¶¶ 82, 87, 93).4
Once inside, the Officers saw the full extent of the damage, which one Officer
described as “a small war zone.” (ECF No. 161 ¶ 84; ECF No. 169 ¶ 84). These photos
show some of that damage:
4 They testified that from the front door, it is possible to hear what happens inside. (Carmen Rincon
Dep. at 202:5-8, ECF No. 161-6); (Carlos Rincon Dep. at 145:22-25, ECF No. 161-2).
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(ECF Nos. 161-35, 161-37).
The Officers found nobody in the kitchen and living room areas. (ECF No. 161 4 88;
ECF No. 169 4 88). They then walked into the hallway where the bedrooms were. (/d.).
The hallway is a narrow, tight space, about three to four feet wide. (Zamorksi Dep. at
108:11-20, ECF No. 161-22); (Carmen Rincon Dep. at 202:9-12, ECF No. 161-6). The
Officers entered the master bedroom first and saw that it too had been destroyed. (ECF
10
No. 161 ¶¶ 89-90; ECF No. 169 ¶¶ 89-90). The Officers then went to the door to Ethan’s
bedroom, which was closed. (ECF No. 161 ¶ 91; ECF No. 169 ¶ 91).
5. The pickaxe and the shooting
Zamorski first tried to open Ethan’s bedroom door, but he was unable to because
something from inside blocked it. (Id.). Dalton then tried to open the door. (Id.).
Dalton first tried to force the door open with his foot; it opened slightly and bounced
back. (ECF No. 161 ¶ 94; ECF No. 169 ¶ 94). The Officers saw that a dresser was on the
other side of the door. (Id.). Dalton pushed the door open and looked in. (Id.). The hallway
lights were on, and Ethan’s room was pitch-black inside. (Id.). Dalton stuck his foot
through the doorway, pushed the dresser with his foot and created more of an opening.
(ECF No. 161 ¶ 95; ECF No. 169 ¶ 95). At this point, Dalton was standing in the doorway
to Ethan’s bedroom. (Dalton Dep. at 150:13-17, ECF No. 161-24).
Dalton then saw Ethan—who, as it turns out, was wearing a dark hoodie—in front
of him, with a pickaxe in his hands. (ECF No. 161 ¶ 96); (Zamorski Dep. at 202:15-203:1,
ECF No. 161-22). Ethan had a blank stare and was gritting his teeth. (ECF No. 161 ¶ 96).
Within a split second, Ethan stepped into his bedroom doorway toward Dalton and, without
saying a word, raised the pickaxe with both hands and swung it towards Dalton’s head.
(ECF No. 161 ¶¶ 96, 106, 107). All three Officers saw this. (ECF No. 161 ¶ 102). The point
of the pickaxe came within inches of Dalton’s head. (ECF No. 161 ¶ 101). Dalton took two
steps backwards and his back hit the other side of the hallway. (ECF No. 161 ¶ 97; ECF
No. 169 ¶ 97). At that same time, Evans fired his gun at Ethan. (ECF No. 161 ¶ 97; ECF
No. 169 ¶ 97). Dalton and Zamorksi also fired their guns at him. (ECF No. 161 ¶¶ 98,
100).5
Ethan started to fall backwards, then spun around and fell to the ground. (ECF
No. 161 ¶ 103). He landed on his back with his head across the hallway, between Dalton’s
feet, and his legs towards the bedroom door. (ECF No. 161 ¶ 103); (Lew Report at 3, ECF
No. 161-62). The pickaxe fell on Ethan’s chest, and he reached for it while laying on the
ground. (ECF No. 161 ¶ 104). Dalton kicked the pickaxe away from Ethan and Zamorski
kicked it farther away, down the hallway. (ECF No. 161 ¶ 105). The pickaxe remained in
the hallway until Fire Rescue arrived. (Id.). The Officers never touched the pickaxe with
their hands. (ECF No. 161 ¶ 108).
Plaintiffs were outside of the house the whole time that the Officers were inside.
(Carlos Rincon Dep. at 206:2-209:2, ECF No. 161-2); (Carmen Rincon Dep. at 169:13-
171:7, ECF No. 161-6). They heard shots fired but they could not see the hallway where
the shooting occurred. (ECF No. 161 ¶ 113); (Carlos Rincon Statement at 23:22-24:2, ECF
No. 161-3); (Carmen Rincon Statement at 30:1-4, ECF No. 161-9). Dalton, Zamorski and
Evans were the only eyewitnesses to the shooting. (ECF No. 161 ¶ 113; ECF No. 169
¶ 113).
6. After the shooting
Immediately after the Officers shot Ethan, Dalton called Fire Rescue and Zamorski
5 Zamorski described the situation like this: “Ethan just came right out like -- it was -- like it was
boom. Like it was hide-and-go-seek and he just -- like when you watch a scary movie and you get
that jump...” and “[t]his was, snap of the finger, and he was right there.... All of a sudden, he just
appeared by the blink of an eye and Dalton jerked back, the axe was right to his head, and that’s
when we shot.” (Zamorski Dep. at 126:10-13, 133:23-134:3, ECF No. 161-22).
performed CPR on Ethan. (ECF No. 161 ¶ 111; ECF No. 169 ¶ 111). Dalton ran out the
front door to get a bag and gloves from his car. (Id.). While outside, Mr. Rincon asked
Dalton whether his son died. (ECF No. 161 ¶ 112; ECF No. 169 ¶ 112). Dalton said, “[h]e’s
down, we’re working on him, he came at me with an axe, I had no choice.” (Carlos Rincon
Dep. at 124:8-10, ECF No. 161-2).
Dalton returned inside less than thirty seconds later, and the Officers alternated
performing CPR on Ethan and continued until Fire Rescue arrived. (ECF No. 161 ¶¶ 114,
116). Police found inside Ethan’s bedroom a bottle of whiskey that was about one-eighths
full. (ECF No. 161 ¶ 125; ECF No. 169 ¶ 125). Forensic testing identified Ethan’s DNA on
the handle of the pickaxe. (ECF No. 161 ¶ 109; ECF No. 169 ¶ 109). All other forensic
evidence, including bullet holes in the doorframe, gunshot wounds on Ethan’s body,
wounds on Ethan’s body from pieces of the doorframe as projectiles, and the position of
Ethan’s body on the floor, are consistent with the Officers’ testimony about how Ethan
attacked Dalton with the pickaxe. (ECF No. 161 ¶ 139). A toxicology report revealed that
Ethan had alcohol, methamphetamine and amphetamines in his system. (ECF No. 161
¶ 126; ECF No. 169 ¶ 126).
B. Procedural history
Plaintiffs filed this action in June 2016. (ECF No. 1). The Court stayed it until state
and administrative investigations concluded. (ECF Nos. 25, 50).6 After several
6 The FDLE, Miami-Dade State Attorney’s Office, Miami-Dade Police Department’s internal
affairs division, and Professional Compliance Bureau investigated the shooting and they all found
that the Officers did not violate any laws or policies. (ECF No. 161 ¶ 131; ECF No. 169 ¶ 131).
amendments to Plaintiffs’ Complaint and litigation of a motion to dismiss, two claims
remain in the Fourth Amended Complaint, which is the operative complaint here. See (ECF
Nos. 1, 9, 11, 59, 96, 111, 117). They are first, excessive use of force, under 42 U.S.C.
§ 1983 (“Count II”), and second, wrongful death, under Florida law (“Count V”). (ECF
No. 96 at 22-25, 28-30).
The parties have completed discovery and Defendants now ask the Court to enter
summary judgment in their favor. (ECF No. 157). The Officers argue they are entitled to
qualified immunity and therefore they are not liable on Plaintiffs’ § 1983 claim. (Id. at 11-
28). Regarding Plaintiffs’ state law claim, the Officers assert they are entitled to sovereign
immunity and that they cannot be held liable because they acted in self-defense. (Id. at 28-
29).
C. Legal standard
Summary judgment is appropriate when the pleadings, depositions, and affidavits
submitted by the parties show that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute
of material fact exists “when there is sufficient evidence favoring the nonmoving party for
a reasonable jury to return a verdict in its favor.” Jessup v. Miami-Dade Cnty., 440 F. App’x
689, 691 (11th Cir. 2011) (quotation marks and citation omitted).
At the summary judgment stage, the Court must determine the relevant facts and
draw all inferences in favor of the nonmoving party “to the extent supportable by the
record”, and it must do so only for “genuine” disputes over material facts. Garczynski v.
Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (citation omitted). A genuine dispute
requires more than “some metaphysical doubt as to the material facts.” Id. (citation
omitted). The nonmoving party’s presentation of a “mere scintilla of evidence” does not
defeat summary judgment; rather, it must produce “substantial evidence” to demonstrate a
genuine dispute of material fact. Id. (quoting Kesinger v. Herrington, 381 F.3d 1243, 1249-
50 (11th Cir. 2004)).
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
D. Analysis
1. Plaintiffs’ § 1983 claim for excessive force; qualified immunity
Title 42 U.S.C. § 1983 allows a citizen to sue any person acting under color of state
law who violates that citizen’s federal constitutional rights. Garczynski, 573 F.3d at 1165
(citation omitted). Plaintiffs claim the Officers violated Ethan’s constitutional right to be
free from excessive uses of force, which is grounded in the Fourth Amendment’s protection
against unreasonable seizures. (ECF No. 167 at 11-14 ¶¶ 24-31); Graham v. Connor, 490
U.S. 386, 394-95 (1989).
The Officers argue they cannot be held liable because they are entitled to qualified
immunity. (ECF No. 157 at 11-20). The doctrine of qualified immunity completely protects
the Officers if, during their encounter with Ethan, they acted within their discretionary
authority and they did not violate Ethan’s “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Garczynski, 573 F.3d at 1166
(quoting Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009)).
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009). It protects from suit “all but the plainly incompetent
or one who is knowingly violating the federal law.” Garczynski, 573 F.3d at 1167 (citation
omitted).
The burden of proof regarding qualified immunity shifts between the parties. Powell
v. Snook, 25 F.4th 912, 920 (11th Cir. 2022). First, the Officers must establish that they
acted within their discretionary authority. Id. (citation omitted). Here, the parties agree that
the Officers met that burden. (ECF No. 157 at 12; ECF No. 167 at 10 ¶ 22). The burden
then shifts to Plaintiffs to show that qualified immunity is “not appropriate.” Powell, 25
F.4th at 920 (citation omitted). To accomplish this, Plaintiffs must demonstrate both that
“(1) the [O]fficers violated a constitutional right, and (2) that right was clearly established
at the time of the incident.” Garczynski, 573 F.3d at 1166 (citation omitted). The Court may
choose the order with which to address these prongs. Id. (citing Pearson, 555 U.S. at 236).
I find that Plaintiffs satisfy neither.
i. Constitutional violation
I begin with the first prong: whether the Officers’ use of force violated Ethan’s
Fourth Amendment rights. They did if their use of force was not “reasonable.” Garczynski,
573 F.3d at 1166 (citing Graham, 490 U.S. at 395). The Court’s assessment of
reasonableness requires it to carefully balance the nature of the Fourth Amendment
violation, against the government’s interests. Id. (citation omitted). The government’s
interests include protecting the safety of police officers and the public at large. Id. (citations
omitted).
The test of reasonableness is not precise. Id. (citations omitted). Rather, the analysis
focuses on the facts of each case, in the context of the totality of the circumstances. Id.
(citation omitted). Among other factors, courts consider “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officer or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Prosper v.
Martin, 989 F.3d 1242, 1251 (11th Cir. 2021) (quoting Graham, 490 U.S. at 396-97).
Reasonableness is an objective standard. Id. “The only perspective that counts is
that of a reasonable officer on the scene at the time the events unfolded.” Garczynski, 573
F.3d at 1166 (citation omitted). Courts must consider “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.” Prosper,
989 F.3d at 1251 (quoting Graham, 490 U.S. at 396-97). Courts may not view the officer’s
actions “with the 20/20 vision of hindsight” because “an officer’s perspective in the field
differs from that of a judge sitting peacefully in chambers”. Garczynski, 573 F.3d at 1167
(citation omitted).
“[I]t is reasonable, and therefore constitutionally permissible, for an officer to use
deadly force when he has ‘probable cause to believe that his own life is in peril.’”
Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (quoting Robinson v. Arrugueta,
415 F.3d 1252, 1256 (11th Cir. 2005)). Moreover, “an officer need only have arguable
probable cause, not actual probable cause, in order to qualify for immunity from a Fourth
Amendment claim.” Garczynski, 573 F.3d at 1167 (citation omitted).
The law is equally clear that “shooting a non-resisting suspect who has done nothing
threatening and thus posed no immediate danger violates the Fourth Amendment right to
be free from the use of excessive force.” Gregory v. Miami-Dade Cnty., Fla., 719 F. App’x
859, 869 (11th Cir. 2017) (collecting cases).
The undisputed facts demonstrate that the Officers’ use of force, when they shot
Ethan, was objectively reasonable. This is because at that moment, the Officers had
probable cause to believe that Ethan posed an immediate threat of serious physical harm to
them.
The undisputed material facts begin with the Officers receiving an emergency
dispatch to respond to an ongoing assault and battery. Dispatch advised the Officers that
an unknown violent male wearing a hoodie was outside a residence armed with a pickaxe;
it also advised that two males were fighting, one armed with a bat and the other with a fire
extinguisher.
The Officers arrived at the Rincon home at night. Neighbors reported that an
unknown male wearing a hoodie, appeared “out of control” and “crazy on drugs evil”, and
was violently striking cars with a pickaxe. The Officers saw that several nearby vehicles
had been damaged in a manner consistent with the use of a pickaxe. A neighbor also told
them that when he pointed a gun at the man, “he obviously didn’t care”.
The Officers also learned that the Rincon’s son might be the man whom the
neighbors had seen, and that he might be inside the Rincon home. When they looked inside
the front window to the home, the Officers saw complete destruction of the living room
furniture that could have been done with a pickaxe. Mr. and Mrs. Rincon told the Officers
that their son, Ethan, had Asperger’s Syndrome, and that he should be inside the home
sleeping. Mrs. Rincon repeatedly told the Officers, “there’s something wrong with the
house, I thought there was something wrong with Ethan ... we need to make sure he is
safe.”
The circumstances the Officers faced were “tense, uncertain, and rapidly evolving.”
Graham, 490 U.S. at 397. This what they knew: a man, who apparently was in a rage or
otherwise out of control, had used a pickaxe, or possibly a bat, to damage cars in the
neighborhood and threaten neighbors. It seemed highly likely that that same person had
entered the Rincon home and destroyed the furniture. The Officers knew that Mrs. Rincon
believed her son was in the house and she was very concerned about his safety. What the
Officers did not know was whether the man who had caused this destruction was the
Rincon’s son, or someone else. They also did not know if that man was inside the Rincon
home, and they did not know if Ethan was in that home and possibly was at risk himself or
if he had been injured. With this information, it was objectively reasonable for the Officers
to enter the home to confirm that no one was inside the home who was injured or otherwise
in need of assistance. The Officers thus reasonably entered the home.7
The Officers are the only eyewitnesses to what occurred inside the home and their
testimony is consistent. What they saw inside the home “looked like a small war zone.”
They went to Ethan’s bedroom last, after finding no one elsewhere in the home. As they
stood in the narrow hallway at the door to Ethan’s bedroom, they announced themselves
and called out Ethan’s name.8 No one responded. When the Officers tried to open the door,
it was blocked. Officer Dalton was able to partially open the door and then faced a man
wearing a dark hoodie, who was still unknown to the Officers, and who appeared to have
a blank stare and was gritting his teeth. The man had a pickaxe that he immediately raised
and swung toward Officer Dalton, who was standing right in front of him. The pickaxe was
within inches of striking Officer Dalton when the Officers opened fire.
The Officers had to react to the threat of the pickaxe instantly. They had no time to
demand that Ethan drop the pickaxe and wait to see if he complied, as it was already in
motion. Moreover, the tight, narrow space of the hallway contributes to the Officers’
reasonable belief that they had no other good option but to shoot Ethan to disable him and
7 These undisputed material facts establish that exigent circumstances justified the Officers’ entry
into the home without a search warrant. I rely upon this finding, in Section D.2, infra, to conclude
that the Officers are entitled to qualified immunity on Plaintiffs’ claim that they violated Ethan’s
Fourth Amendment right to be free from warrantless searches.
8 Plaintiffs, who were standing outside of the front door, did not hear the Officers identify
themselves, and from this they contend that this testimony of the Officers is false. (ECF No. 161
¶¶ 82, 87, 93; ECF No. 169 ¶¶ 82, 87, 93); (ECF No. 167 at 7 ¶ 16). The record does not definitively
establish, however, that any police announcement outside of Ethan’s bedroom would have to have
been heard by people standing outside the house. Thus, Plaintiffs’ testimony on this point does not
contradict the Officers’ testimony. Even if the Officers failed to make any announcements, that
fact is immaterial because they did not shoot Ethan until he posed an immediate threat of harm to
Officer Dalton.
prevent serious physical harm to Officer Dalton.
Courts have found that officers’ use of firearms in similar circumstances was
reasonable. See, e.g., Garczynski, 573 F.3d at 1168-70 (officers shot a man who, after he
put a gun to his head, pointed it in the direction of the officers); Singletary, 804 F.3d at
1182-84 (officer had only seconds to react when suspect accelerated his car towards him);
Prosper, 989 F.3d at 1253-54 (officer shot violent suspect who “was behaving irrationally
and erratically”, and had the officer’s finger locked between his jaws); Wood v. City of
Lakeland, Fla., 203 F.3d 1288, 1292-93 (11th Cir. 2000) (officer made “a reasonable split-
second judgment call” and shot someone in a “volatile, emotional, and aggressive state”
who was armed with a box cutter and slid toward the officer), abrogated on other grounds,
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
The Officers’ testimony is consistent and supported by other record evidence. This
includes: (1) Ethan’s DNA on the handle of the pickaxe, (2) unrebutted expert testimony
that the position of Ethan’s body on the ground, after he was shot, is consistent with him
being in the doorway or coming out of the bedroom when the Officers shot him,
(3) unrebutted expert testimony that Ethan’s entry and exit bullet wounds are consistent
with his holding a pickaxe up and in front of his chest when he was shot, (4) Ray’s
testimony that he saw a man in a hoodie violently use a pickaxe, and that the man appeared
“crazy on drugs evil”, (5) Jesus’ testimony that he saw a man in a hoodie use a weapon to
damage cars, and that he appeared “out of control”, (6) Ethan wore a hoodie when he was
shot, (7) the extensive damage inside the home was consistent with the use of a pickaxe,
and (8) immediately after the shooting, Officer Dalton ran out of the home and said to Mr.
Rincon, “he came at me with an axe, I had no choice.”
The totality of this evidence leads the Court to conclude that when the Officers shot
and killed Ethan, they acted reasonably and therefore did not violate Ethan’s Fourth
Amendment right to be free from unlawful seizure.
Plaintiffs do not argue that if the events unfolded as the Officers testified, they did
not use reasonable force. Rather, they argue that the Officers testified falsely and that, in
fact, Ethan did not have a pickaxe; rather, the pickaxe was outside the house when the
Officers shot Ethan. Plaintiffs thus contend that the Officers shot “an unarmed suspect who
present[ed] no danger to anyone.” (ECF No. 167 at 12 ¶ 27). To reach this conclusion,
Plaintiffs theorize that immediately after they shot Ethan, “[o]ne of the officers went to the
side yard, retrieved the pickaxe, and brought it into the house, placing it in the hallway ....”
(ECF No. 168 ¶¶ 108, 111, 116-18).
Plaintiffs offer no direct evidence to support their theory. The concede they cannot
explain how “the officers got the pickaxe into the house”, and that no witness “saw or heard
any of the Officers leave the Rincon residence after shots were fired/heard, go outside, pick
up an axe, and come back into the Rincon residence.” (ECF No. 169 ¶¶ 108, 118); (ECF
No. 161 ¶ 118).
Plaintiffs rely solely on Mrs. Rincon’s testimony that she saw the pickaxe outside
the house when she arrived home that night. From this, Plaintiffs conclude that the pickaxe
remained there until after their son was shot. Mrs. Rincon gave this testimony, at
deposition, five years after her son was shot:
A: Okay. On the wall [outside], I have my garden. I have
desert rose in planters and I have rocks. I see that all my
pots and everything is broken and –
Q: Let me ask you. What are the lighting conditions in this
area?
A: I have a huge light so you can see everything there.
That's where I put the bulbs so that's why I have a lot of
light there. First thing I see there is all of my broken
pots and then I see my big pickax in there. It was thrown
on the side.
(Carmen Rincon Dep. at 194:8-17, ECF No. 161-6) (emphasis added).
Defendants point out, correctly, that Mrs. Rincon’s deposition testimony is
inconsistent with a statement she made to the FDLE years earlier, a couple weeks after her
son was shot. Notably, when she gave that statement, Mrs. Rincon expressed doubt that her
son had threatened the Officers with a pickaxe; she said that had her son held a pickaxe,
she would have heard it fall to the floor when he fell – which she did not hear. (Carmen
Rincon Statement at 32:4-5, ECF No. 161-9) (“There is no ax because I would have heard
the thump.”). Yet Mrs. Rincon did not tell the FDLE officers investigating her son’s death,
that she saw the pickaxe outside the house shortly before he was shot. Rather, she said:
Q: Okay. And the pickaxe, where is that normally at?
A: I think [Carlos] left it in the garden. It had to be with
the tools, but it looked like he left it. [Carlos], usually
puts everything, but it looked like it was there. He did
work this weekend.
Q: Okay. Clearly there was some damage to the living
room and outside the house there were some pots.
A: Yes, that’s where the ax could have been right there.
(Id. at 48:1-11) (emphasis added).
No other witnesses testified that they saw a pickaxe outside, which is notable given
the multiple witnesses who walked by that area.9 Mrs. Rincon’s testimony is without
corroboration.
At the summary judgment stage, the Court “do[es] not weigh conflicting evidence
or make credibility determinations; the non-movant’s evidence is to be accepted for
purposes of summary judgment.” Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016).
The Court here accepts Mrs. Rincon’s deposition testimony as true. Yet it does not defeat
entry of summary judgment, because her testimony does not contradict the Officers’
testimony.
The parties agree that at least five to ten minutes elapsed between the time Mrs.
Rincon arrived that night and the Officers’ entry into her home. (ECF No. 161 ¶ 57; ECF
No. 169 ¶ 57).10 At her deposition, Mrs. Rincon testified that the pickaxe was the “[f]irst
thing” she saw when she arrived. (Carmen Rincon Dep. at 194:15, ECF No. 161-6). After
that, she and the Officers went to the front of the house where all Officers spoke with her
until Mr. Rincon arrived. At that point, all Officers and Mr. and Mrs. Rincon remained at
9 According to Mrs. Rincon, this is something anyone would have seen. (Carmen Rincon Dep. at
199:9-14, ECF No. 161-6) (“Q: Would it have been something that you can’t miss? A: Oh, yes,
you could not miss it. It was right there, yes, It’s very close to the gate on the side over there. You
can see all the lights. The light over there, you can see everything there.”). Zamorski testified that
the Officers did not see the pickaxe outside the house. (Zamorski Dep. at 170:8-13, ECF No. 161-
22) (“And like I said before, when we went to the side of the house and we went to the back, if
that pickaxe was back there, that would have been our weapon. That is a key fact for the case of
the damage to the vehicles, so we would have secured that.”).
10 In their Reply, the Officers note that the time could have been as long as eighteen minutes. (ECF
No. 179 at 12 n.2).
the front of the house, speaking and observing the damage, until the Officers went inside.
The Rincons stayed outside near the front door until after the shots were fired. No witness
went to the side of the house or the backyard during that timeframe.
The Rincon home has a door at the back of the house. (ECF No. 167 at 17 ¶ 39).
During the time that elapsed, it is conceivable that Ethan could have used a rear door to
exit the house, pick up the pickaxe and take it back inside. With this possibility, Mrs.
Rincon’s deposition testimony is not “substantial evidence” that places in dispute the
Officers’ testimony that they shot Ethan because they reasonably believed he threatened
them with deadly force. Garczynski, 573 F.3d at 1165.
These circumstances are somewhat similar to those considered in Prosper. There,
the plaintiff, Prosper, argued that a very poor-quality video created a genuine dispute of a
material fact because it showed, inter alia, that the officer “chased Prosper down as he
attempted to ‘crawl[] away from [the officer] through the bushes,’ stood over him ‘in a
shooting position,’ and then either tased Prosper again or shot him with his firearm.”
Prosper, 989 F.3d at 1252 (first alteration in original). If Prosper’s version of events was
true, then the Court would have had evidence before it that the officer “tas[ed] and [shot]
him without provocation while he slowly retreated ....” Id. The video, however, did not
actually depict “much of anything other than some very gross movements.” Id. The
Eleventh Circuit concluded that “[a] blurry video that does not depict much of anything
cannot give rise to issues of fact about what did or did not happen on a particular occasion.”
Id. at 1252-53. It found, as the District Court did, that “the video ‘does not contradict [the
officer]’s statements; at best, it failed to corroborate them.’ [The officer]’s version of
events thus remains unrebutted and controls our analysis.” Id. at 1253 (quoting the District
Court).
Like Prosper, Plaintiffs “make[] too much of” Mrs. Rincon’s testimony. Id. at 1252.
They ask this Court to, based on her deposition testimony alone, broadly speculate that the
Officers committed a “cold-blooded shooting” because they shot “an unarmed suspect who
present[ed] no danger to anyone”, and then ran outside, grabbed the pickaxe, and planted
it at the scene. (ECF No. 167 at 2 ¶ 3, 12 ¶ 27). This is too great a leap. The Court will not
“treat as true a party’s unfounded speculation about what happened.” Prosper, 989 F.3d at
1252 (citing Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir.
1985)).
Plaintiffs advance one other theory to support their claim of excessive use of force.
They argue that “[a]t the time of the shooting, a dresser partially blocked the door to Ethan’s
bedroom from opening” and therefore, Ethan “could not have wielded a pickaxe as the
Defendants allege.” (ECF No. 167 at 8 ¶ 18). In their Response, Plaintiffs offer little
argument, and no evidence, to support this.
Officer Dalton testified that when he pushed the door open, he stuck his foot through
the doorway and pushed the dresser, which had been touching the door, with his foot to
create more of an opening. (Dalton Dep. at 150:4-12, ECF No. 161-24). He then took a
step forward because his foot came off the back of the dresser and slid to the floor. (Id. at
150:13-17). At that moment, he was in the doorway to Ethan’s bedroom, and that is when
Ethan came through the doorway and swung the pickaxe at him, which caused Officer
Dalton to step backwards. (Id. at 150:17-151:1). He further described how Ethan held the
pickaxe:
[H]e had the ax up over and as he clears the doorway and steps
out, he’s kind of choked up on the ax. He’s not holding it by
the bottom half of the ax, but he’s not holding it all the way up
by the metal part of the ax. He’s holding it like midway through
over his shoulder. As he clears the door, he comes up like just
above, not completely over his head, but above his head --
above his ear ....
(Id. at 151:8-16). Officers Zamora and Evans provided similar testimony. See (Zamorski
Dep. at 125:8-138:8, ECF No. 161-22); (Evans Dep. at 149:15-151:5, ECF No. 161-23).
The Officers also present forensic evidence that corroborates their testimony. Dr. Emma
Lew, Chief Medical Examiner for the Miami-Dade County Medical Examiner’s
Department, found, inter alia, that the location of Ethan’s body suggests that when the
Officers shot Ethan, he “was in the doorway and/or coming out of the doorway of the
bedroom”. (Lew Report at 5, ECF No. 161-62).
“A party asserting that a fact ... is genuinely disputed must support the assertion by
citing to particular parts of materials in the record ....” Fed. R. Civ. P. 56(c)(1)(A)
(emphasis added). Plaintiffs cite no evidence that places these facts in dispute. The Court
must reject Plaintiffs’ second theory.
In sum, I conclude that Plaintiffs do not meet their burden to show that the Officers
violated Ethan’s Fourth Amendment rights.
ii. Clearly established law
Plaintiffs also fail to demonstrate that the law clearly established Ethan’s Fourth
Amendment right to be free from the force the Officers used that night.
“In determining whether the constitutional right at issue was ‘clearly established’ at
the time the officer acted, [courts] ask whether the contours of the right were sufficiently
clear that every reasonable officer would have understood that what he was doing violates
that right.” Prosper, 989 F.3d at 1251 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). “The salient question is whether the state of the law at the time of an incident
provided ‘fair warning’ to the defendant that his alleged conduct was unconstitutional.”
Singletary, 804 F.3d at 1184 (alterations adopted) (quoting Tolan v. Cotton, 572 U.S. 650,
656 (2014)).
Plaintiffs may show that a right was “clearly established” through: “(1) case law
with indistinguishable facts clearly establishing the constitutional right; (2) a broad
statement of principle within the Constitution, statute, or case law that clearly establishes
a constitutional right; or (3) conduct so egregious that a constitutional right was clearly
violated, even in the total absence of case law.” Prosper, 989 F.3d at 1251 (quoting Perez
v. Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016)).
The most common way that fair warning is provided is through “materially similar”
case law, which must come from the United States Supreme Court, the Eleventh Circuit
Court of Appeals, or the highest state court in which the case arose. Singletary, 804 F.3d
at 1184 (citation omitted). To demonstrate whether case law is “materially similar,” courts
ask, “whether the factual scenario that the official faced ‘is fairly distinguishable from the
circumstances facing a government official’ in a previous case.” Terrell v. Smith, 668 F.3d
1244, 1256 (11th Cir. 2012) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1352 (11th Cir.
2002). “If so, the cases are not materially similar and, thus, provide insufficient notice to
the official to clearly establish the law.” Id. (citation omitted). The facts need not be
identical, but they must be “particularized” to the facts of the case and must not be defined
“at a high level of generality”. Anderson v. Creighton, 483 U.S. 635, 640 (1987); al-Kidd,
563 U.S. at 742. The Supreme Court has emphasized that specificity is critical:
Specificity is especially important in the Fourth Amendment
context, where the Court has recognized that it is sometimes
difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual
situation the officer confronts. Use of excessive force is an area
of the law in which the result depends very much on the facts
of each case, and thus police officers are entitled to qualified
immunity unless existing precedent squarely governs the
specific facts at issue.
Kisela v. Hughes, 138 S. Ct. 1148, 1152-53 (2018) (alteration adopted) (quotation marks
and citation omitted).
To show that the Officers violated a clearly established constitutional right,
Plaintiffs rely on four cases from the Eleventh Circuit: (1) Gregory v. Miami-Dade Cnty.,
Fla., 719 F. App’x 859 (11th Cir. 2017); (2) Perez v. Suszczynski, 809 F.3d 1213 (11th Cir.
2016); (3) Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005); and (4) McKinney
v. DeKalb Cnty., Ga., 997 F.2d 1440 (11th Cir. 1993). All those cases involve factual
scenarios that are materially distinguishable from the circumstances here.
First, in Gregory, in 2012, a police officer stopped an individual who was walking
on the side of a road late at night. 719 F. App’x at 861. The officer saw a bulge on the
individual’s right hip with two inches of a shiny metallic object protruding out of the top
of the individual’s pants. Id. The officer believed that object to be a gun. Id. at 862. Standing
about seven feet away from the individual, the officer ordered him to lay prone on the
ground. Id. The officer testified that he saw the individual’s hand move quickly to touch
the bulge on his side and that the officer believed he was going to pull out a gun and shoot
him. Id. In response, the officer shot him. Id. The individual, however, testified that he
never moved his hands. Id. at 863. The Eleventh Circuit found that a genuine dispute of
material fact existed as to “whether [the individual] moved his hands towards the bulge on
his hip and thus posed an immediate risk of serious bodily harm to [the officer].” Id. at 867.
Although the Eleventh Circuit decided Gregory in November 2017 (after the shooting
here), the Court stated: “The law was clearly established as of May 28, 2012 that shooting
a non-resisting suspect who has done nothing threatening and thus posed no immediate
danger violates the Fourth Amendment right to be free from the use of excessive force.”
Id. at 869 (emphasis added) (citations omitted).
Second, in Perez, officers arrived at a parking lot in response to a call of two women
fighting. 809 F.3d at 1217. The officers ordered a bystander, Arango, to get on the ground.
Id. He complied, laid face down, and kept his hands behind his back. Id. An officer noticed
that Arango had a gun, and another officer removed it and threw it about ten feet away. Id.
An officer then shot Arango twice in the back, in a manner a witness described as
“execution-style,” from about twelve to eighteen inches away. Id. The Eleventh Circuit
held that “no reasonable officer would have shot Arango while he was lying prone,
unarmed, and compliant.” Id. at 1218 (emphasis added).
Third, in Mercado, officers responded to a home regarding an attempted suicide.
407 F.3d at 1154. Upon arrival, they found Mercado inside sitting on the kitchen floor
crying, with a cord wrapped around his neck and pointing a knife toward his heart. Id. The
officers ordered Mercado to drop the knife, but he refused. Id. Without warning Mercado
that they would use force if he did not drop the knife, an officer from six feet away fired a
Sage Launcher at him, which expelled a projectile that hit him in the head and fractured
his skull. Id. at 1154-55. The Eleventh Circuit found that the officer unreasonably used
excessive force “[b]ecause [Mercado] was not committing a crime, resisting arrest, or
posing an immediate threat to the officers at the time he was shot in the head”. Id. at 1157-
58 (emphasis added).
Finally, in McKinney, police officers responded to a woman’s call that her sixteen-
year-old son had locked himself in his bedroom and with a knife. 997 F.2d at 1442. Police
entered the room and found him sitting on the floor of his closet holding a butcher knife in
one hand and a twelve-inch stick in the other. Id. An officer knelt a few feet away from him
and spoke to him for about ten minutes with no response. Id. What followed was contested.
In one version, the boy made some motion, “during which he allegedly threw the stick out
toward Officer Nelson and began to rise from his seated position” when Officer Nelson
shot him. Id. In the other version, as alleged by the plaintiffs, the boy “previously put down
his knife and was merely shifting position, not threatening the safety of any persons, when
Officer Nelson shot him.” Id. at 1443 (emphasis added). The Eleventh Circuit found that
summary judgment was not appropriate because “facts are in dispute as to what happened
that led Officer Nelson to fire his gun” and that “the facts alleged by the plaintiffs support
a claim of violation of clearly established law.” Id.
Each of these decisions are not “materially similar” because they involve no
immediate threat to the safety of an officer. Singletary, 804 F.3d at 1184.
In sum, Plaintiffs fail to meet the second prong of their burden to show that
preexisting law provided fair warning to the Officers that their conduct was unlawful.
2. Unlawful entry, under § 1983
Count II, titled “Wrongful Death Resulting From Excessive Use Of Force ...”
includes allegations that the Officers, in addition to their unconstitutional use of excessive
force, also unconstitutionally entered the Rincon home; both in violation of the Fourth
Amendment. (ECF No. 96 at 22-25). Plaintiffs conflate their unlawful entry and excessive
force claims. For example, they allege that “[w]ithout legal justification, [the Officers]
forcibly entered the Rincon home and once therein suddenly shot and killed Ethan without
cause.” (Id. at 23 ¶ 95). They also allege that the Officers “are not entitled to qualified
immunity because no reasonable police officer acting under these circumstances would
have entered the residence in the first place, let alone attempt to engage Ethan or resort to
the use of deadly force against Ethan ....” (Id. at 24 ¶ 98). Plaintiffs also allege that “[t]here
were no exigent circumstances [that] allow[ed] [the Officers] to enter the Rincon
residence”. (Id. at 23 ¶ 93). In Count II, Plaintiffs appear to claim that the Officers’ alleged
unlawful entry led to and thus contributed to their alleged use of excessive force.
In their Motion, the Officers offer two reasons why Count II’s allegations about
unlawful entry are not properly plead, and they contend that the Court “should not
consider” this claim. (ECF No. 157 at 20-21). Alternatively, the Officers argue that the
Court should find that they are entitled to qualified immunity on the claim of unlawful
entry, and grant summary judgment on that basis. (Id. at 22-28). I recommend that the Court
do the latter.
i. Plaintiffs did not properly plead an unlawful entry claim
Plaintiffs combine two distinct claims into Count II: that the Officers unlawfully
entered the home, in violation of the Fourth Amendment prohibition on warrantless
searches, and that the Officers used excessive force in violation of Ethan’s Fourth
Amendment right to not be seized without a warrant.
“A § 1983 claim requires proof of an affirmative causal connection between the
defendant’s acts or omissions and the alleged constitutional deprivation. Recovery of
damages is limited to those injuries proved to be caused by the defendants.” Troupe v.
Sarasota Cnty, Fla., 419 F.3d 1160, 1165 (11th Cir. 2005) (citation omitted).
The record is at odds with Plaintiffs’ confounding pleading of Count II. The
Officers’ alleged unlawful entry did not cause Ethan’s death. Plaintiffs allege that the
Officers’ use of excessive force caused Ethan’s death. (ECF No. 167 at 15-16 ¶ 36). At
best, the alleged violation of Ethan’s Fourth Amendment right to be protected from a
warrantless search of his home caused nominal injury. See Slicker v. Jackson, 215 F.3d
1225, 1231 (11th Cir. 2000) (“We have held unambiguously that a plaintiff whose
constitutional rights are violated is entitled to nominal damages even if he suffered no
compensable injury.”) (citations omitted). Plaintiffs do not identify in the Complaint any
injury caused by the alleged unlawful entry to the Rincon home.
In their Motion, the Officers point out, correctly, that the Supreme Court, in Cnty.
of Los Angeles, Cal. v. Mendez, 137 S. Ct. 1539 (2017) ruled out a “provocation” claim.
(ECF No. 157 at 22-23). That is, the Court held that a “different Fourth Amendment
violation cannot transform a later, reasonable use of force into an unreasonable seizure.”
Mendez, 137 S. Ct. at 1539.
In their Response, Plaintiffs contend they do not rely on the so-called provocation
rule that the high Court rejected in Mendez. (ECF No. 167 at 15-16 ¶ 36). Plaintiffs offer
no persuasive justification for combining into one count their claims of an unlawful
warrantless search, by entry into the house, and unlawful warrantless seizure, by use of
excessive force.
Rule 8(d)(2) of the Federal Rules of Civil Procedure permits a plaintiff to set out, in
a single count, two or more alternate statements of a claim. Fed. R. Civ. P. 8(d)(2). “[I]t
does not allow multiple distinct claims to be amassed into a single undifferentiated count.”
Marlborough Holdings Grp., Ltd. v. Azimut-Benetti, Spa, Platinum Yacht Collection
No. Two, Inc., 505 F. App’x 899, 907 (11th Cir. 2013).
Plaintiffs argue that the ship has sailed on this argument. Citing Federal Rule of
Civil Procedure 12(b)(6), they correctly point out that this pleading failure was appropriate
for a motion to dismiss for failure to state a claim. (ECF No. 167 at 15 ¶ 34). They wrongly
argue, however, that Defendants made this argument in their Motion to Dismiss, and that
the Court rejected it. (Id. ¶ 35). In fact, the Officers’ Motion to Dismiss Count II was
confined to one argument: that the lawsuit should be dismissed based on qualified
immunity. (ECF No. 99 at 7-19). They did not seek dismissal under Rule 12(b)(6).
The Officers rely on the Eleventh Circuit’s decision in Marlborough Holdings Grp.
as authority that the Court can rely upon Plaintiffs’ improper pleading to grant summary
judgment. The Marlborough Court upheld a district court’s grant of summary judgment
for a defendant, that rested on the finding that the plaintiff wrongly failed to plead civil
conspiracy as a separate count. 505 F. App’x at 907. On appeal, the plaintiff there argued
that the trial court, in this manner, erroneously disregarded the allegations of civil
conspiracy when it entered summary judgment. Id. The Court of Appeals wrote: “even if
the district court declined to consider Marlborough’s civil conspiracy claim (and we are
not convinced that it did), the court did not err by doing so because Marlborough should
have presented the claim in a separate count.” Id. Relying on this, the Officers argue that
this Court should now “decline Plaintiffs’ invitation to address a claim that has not been
properly pled.” (ECF No. 157 at 21).
The Court is reluctant to rely upon Marlborough Holdings Grp. for the proposition
that at the summary judgment stage, the Court can enter judgment for a defendant on a
claim that the Court now finds was not properly plead. The Marlborough Court did not
address the timeliness of the defendant’s pleading challenge, and it may be that that
argument had been waived. Moreover, Marlborough is an unpublished opinion. It may be
cited as persuasive authority; it is not binding precedent. McNamara v. Gov’t Emps. Ins.
Co., 30 F.4th 1055, 1060 (11th Cir. 2022).
On this reasoning, I turn to the application of qualified immunity, as it clearly
applies to this Fourth Amendment claim.
ii. Qualified immunity protects the Officers from the unlawful
entry claim
As noted, to overcome qualified immunity, Plaintiffs must show that the Officers
violated a clearly established constitutional right. The Fourth Amendment sets forth a
general prohibition on warrantless searches of a person’s home. United States v. Holloway,
290 F.3d 1331, 1334 (11th Cir. 2002). The Supreme Court has recognized certain
exceptions and one is exigent circumstances. Id. That exception recognizes that a
“warrantless entry by criminal law enforcement officials may be legal when there is
compelling need for official action and no time to secure a warrant.” Id. (quoting Michigan
v. Tyler, 436 U.S. 499, 509 (1978)). “One of the most compelling events giving rise to
exigent circumstances is the occurrence of an emergency situation.... The most urgent
emergency situation excusing police compliance with the warrant requirement is, of course,
the need to protect or preserve life.” Id. at 1335 (citations omitted).
For the reasons already expressed in Section D.1(i), supra, the undisputed evidence
establishes the Officers’ reasonable belief that someone might have been inside the Rincon
home who was gravely injured, or at risk of such injury. The Court concludes that Plaintiffs
have failed to show that when the Officers entered Ethan’s home without a warrant, they
violated a clearly established constitutional right. The Officers are therefore entitled to
qualified immunity on this claim, and I recommend that the Court enter summary judgment
for the Officers on this basis.
3. State law claim
The Officers assert defenses of self-defense and sovereign immunity in response to
Plaintiffs’ claim for wrongful death brought under Florida law. (ECF No. 157 at 28-29).
Florida’s self-defense law provides that a person is justified in using deadly force
“if he or she reasonably believes that using ... such force is necessary to prevent imminent
death or great bodily harm to himself or herself or another ....” Fla. Stat. § 776.012(2). The
law further provides that the person who uses such deadly force “does not have a duty to
retreat”. Id.
Florida law also provides sovereign immunity to police officers who carry out their
duties, unless their actions were committed “in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or property.”
Penley v. Eslinger, 605 F.3d 843, 855 n.8 (11th Cir. 2010) (quoting Fla. Stat.
§ 768.28(9)(a)).
Plaintiffs advance the same argument to support their state law claim than they do
for their § 1983 claim: that Mrs. Rincon’s testimony that she saw the pickaxe outside of
her home before the shooting, places in dispute whether Ethan had the pickaxe when the
Officers entered the house. Plaintiffs thus argue that the Officers were not justified in using
deadly force and that they acted “in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. (ECF No. 167 at 19 ¶ 44).
For the reasons stated above, I conclude that there is no genuine dispute that Ethan
did not have the pickaxe. On this record, the Officers’ use of force was justified. It thus
follows that the Officers did not act “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). I therefore conclude that summary judgment on Plaintiffs’ state law claim
should be granted in favor of the Officers, based on both sovereign immunity and the
Officers’ affirmative defense of self-defense.
E. Conclusion
Ethan’s death was a tragedy. The Court knows that the Rincons’ loss is
immeasurable. The Rincons understandably urge that the Officers could have handled the
situation in a manner that would have spared Ethan’s life. This may be so. That, however,
is not the question that the doctrine of qualified immunity presents to this Court.
For the reasons stated here, the Court finds that the Officers reasonably believed
that exigent circumstances demanded that they enter the Rincon home, and once they were
face-to-face with Ethan, that they use deadly force. I therefore conclude that Defendants
are entitled to judgment as a matter of law on all claims remaining in the Fourth Amended
Complaint (Counts II and V). Accordingly, I RESPECTFULLY RECOMMEND that the
Court GRANT Defendants’ Motion for Summary Judgment. (ECF No. 157).
F. Objections
No later than fourteen days from the date of this Report and Recommendation
the parties may file any written objections to this Report and Recommendation with the
Honorable Darrin P. Gayles, who is obligated to make a de novo review of only those
factual findings and legal conclusions that are the subject of objections. Only those
objected-to factual findings and legal conclusions may be reviewed on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 28
U.S.C. § 636(b)(1); 11th Cir. R. 3-1 (2016).
II. Defendants’ Daubert Motion
Defendants ask the Court to exclude from evidence at trial a portion of the testimony
of Plaintiffs’ expert, John Dale, under Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579 (1993). (ECF No. 171). Mr. Dale is an expert in police
practices and procedures, and Plaintiffs wish to introduce at trial his opinion regarding
“whether [the Officers] acted in accordance with reasonable professional standards, widely
accepted police practices and customs regarding their actions leading to the death of Ethan
Rincon ....” (John Dale Report at 2, ECF No. 174-1).
The portion of his testimony that Defendants seek to exclude from evidence
concerns scene reconstruction. At deposition, Mr. Dale testified in response to Defendants’
counsel’s questions as follows: “If there’s testimony that says [Ethan] raised the pickaxe
up over his head and came down in a downward motion, we can see that he’s 5-foot-8. If
he’s holding the pickaxe well above his head in a swinging, arcing motion, that door is too
small for that.” (John Dale Dep. at 197:10-16, ECF No. 171-2).
Plaintiffs acknowledge that Mr. Dale is not an expert in scene reconstruction, as
does Mr. Dale. (ECF No. 183); (John Dale Dep. at 22:23-23:5, 199:14-200:10, ECF
No. 171-2). This alone is sufficient reason to grant the Daubert Motion.
Plaintiffs do not clarify whether they intend to introduce at trial Mr. Dale’s opinion
regarding scene reconstruction. Plaintiffs’ two-page response memorandum suggests that
they may introduce that opinion because “Defendants opened the door to the testimony”
by “specifically asking him” at deposition. (ECF No. 183 ¶ 3).
The concept of “opening the door” provides that “when a party offers inadmissible
evidence before a jury, the court may in its discretion allow the opposing party to offer
otherwise inadmissible evidence on the same matter to rebut any unfair prejudice created.”
Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004)
(emphasis added) (citations omitted). We are not at trial, and Defendants’ counsel’s
questioning at deposition did not “open the door” to the admission of that opinion at trial.
The Court GRANTS Defendants’ Motion to Exclude Expert Opinions of John Dale,
(ECF No. 171).
RESPECTFULLY RECOMMENDED in Miami, Florida this 8th day of June 2022.
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CHRIS MCALILEY
UNITED STATES MAGISTRATE JUDGE
cc: | Honorable Darrin P. Gayles
Counsel of record
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