Venisee v. Miami-Dade County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-cv-20024-ALTMAN

VITO CORLEON VENISEE,

Plaintiff,

v.

MIAMI-DADE COUNTY, et al.,

Defendants.

______________________________/

ORDER GRANTING MOTION TO DISMISS

On January 16, 2022, fifteen-year-old Vito Corleon Venisee (our Plaintiff) was “shot in the

back of his neck” by Defendant Luke Marckioli—a Miami-Dade County police sergeant. Complaint

¶¶ 11, 15. The shot wasn’t fatal, but it rendered Venisee a quadriplegic and caused other “severe and

permanent injuries[.]” Id. ¶ 15. Venisee brought this civil-rights action under 42 U.S.C. § 1983 and

Florida law against Sergeant Marckioli, Miami-Dade County, and the Miami-Dade Police Department

(“MDPD”),1 seeking recompense for “Defendant Marckioli’s excessive force [causing] permanent,

life-threatening injuries.” Id. at 1. The Defendants have moved to dismiss the lawsuit, arguing that

Sergeant Marckioli “is entitled to qualified immunity,” that the MDPD “is not a legal entity subject to

suit[,]” and that Venisee failed to state a claim against the County. Motion to Dismiss (“MTD”) [ECF

No. 14] at 1. The MTD has been fully briefed and is ripe for adjudication. See Response in Opposition

1 The Miami-Dade Police Department has been renamed the “Miami-Dade Sheriff’s Office.” Teri

Hornstein & Mauricio Maldonado, Rosie Cordero-Stutz Sworn in as New Miami-Dade Sheriff, CBS NEWS

(Jan. 7, 2025, 10:39 PM), https://www.cbsnews.com/miami/news/new-miami-dade-sheriff-rosie-

cordero-stutz-takes-oath-of-office/. Since the events that led to this case took place before the name

change, however, we’ll continue to refer to this entity as the MDPD.

to Defendants’ Motion to Dismiss (“Response”) [ECF No. 24]; Defendants’ Reply in Support of Their

Motion to Dismiss (“Reply”) [ECF No. 25]. After careful review, we GRANT the MTD.2

THE LAW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ibid. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ibid. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 545). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016). “The motion is granted only when the

movant demonstrates that the complaint has failed to include ‘enough facts to state a claim to relief

that is plausible on its face.’’’ Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016)

(quoting Twombly, 550 U.S. 544, 570 (2007)).

2 We’d normally begin our order by reciting the facts that are alleged in the Plaintiff’s Complaint. But

we’ll hold off on this for now because the parties dispute whether we can consider the evidence from

the officers’ body cameras. See Response at 2 (“As a preliminary matter, references to bodyworn

camera footage are improper.”); Reply at 2 (“Courts may consider body camera footage at the motion

to dismiss stage where the videos are ‘central to the plaintiff’s claim’ and undisputed in terms of its

authenticity.” (quoting Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024)).

ANALYSIS

Venisee’s Complaint asserts six counts against the three Defendants. Count I alleges that

Sergeant Marckioli used unreasonable and excessive force against Venisee by shooting him, in

violation of § 1983. See Complaint ¶ 26 (“Shooting a child who is resisting arrest without violence is

clearly excessive, unnecessary, and unreasonable. No reasonable police officer in [Marckioli’s] position

would have used this amplified degree of force.”). Count II claims that the County violated § 1983 by

maintaining “policies and practices exhibiting deliberate indifference to the Constitutional rights of

Miami-Dade County citizens which caused the violation of [Venisee’s] rights.” Id. ¶ 31. Count III

contends that the County violated the U.S. Constitution by failing to adequately train or supervise its

police officers. See id. ¶ 43 (“This failure to train, discipline, and supervise [Marckioli] increased the

risk of physical harm and constitutional violations of all constituents of Miami-Dade County[.]”).

Counts IV and V aver that the MDPD negligently supervised and trained its officers in violation of

Florida law. See id. ¶ 56 (“[MDPD’s negligence supervision of Miami-Dade police officers, including

[Sergeant Marckioli] was a direct and proximate cause of [Venisee’s] injuries.”); id. ¶ 62 (same, but for

“negligent training”). And Count VI asserts that Sergeant Marckioli committed a common-law battery

against Venisee when he “[shot] him in the back of the neck.” Id. ¶ 65. For the following reasons, we

dismiss all six counts.

I. The Excessive Force and Battery Claims (Counts I and VI)

Venisee’s central claim—the one from which the five others flow—is that Sergeant Marckioli

unreasonably shot him “as he was running away[.]” Id. ¶ 24. Venisee concedes that he “was a passenger

in the back seat of a vehicle” that “was reported stolen” and that he fled from the police after “the

driver lost control of the vehicle and crashed.” Id. ¶¶ 11–13. But he insists that he didn’t “pose a threat

to any of the officers on the scene as he was running away” and that Sergeant Marckioli’s decision to

shoot him “was not a reasonable way to effectuate an arrest for a nonviolent crime.” Id. ¶ 24; see also

id. ¶ 26 (“Shooting a child who is resisting arrest without violence is clearly excessive, unnecessary,

and unreasonable.”).

The County responds that Venisee’s Complaint omits a crucial fact (depicted in the body-cam

footage): When officers “repeatedly ordered Plaintiff to put his hands down or show them his

hands[,]” Venisee “took out a gun.” MTD at 1–2. Venisee’s display of a firearm, the Defendants argue,

rendered Sergeant Marckioli’s use of force reasonable and entitles him to qualified immunity. See id. at

6 (“Faced with a noncompliant, fleeing armed suspect, who had just committed a felony, Sgt.

Marckioli’s use of force was objectively reasonable.”). We agree with the Defendants that Sergeant

Marckioli is immune under these circumstances.

A. The Body-Worn Camera Footage

Before we reach the all-important question of qualified immunity, we need to determine

whether we can consider the contents of two body-worn cameras (the “bodycams”) the Defendants

conventionally filed on a flash drive. See Notice of Conventional Filing [ECF No. 17].3 The Defendants

say that we should consider this footage under the “incorporation-by-reference” doctrine “because

[the videos are]: ‘(1) central to the plaintiff’s claims; and (2) undisputed, meaning that [their]

authenticity is not challenged.’” MTD at 1 n.1 (quoting Johnson, 107 F.4th at 1300). The Defendants

also urge us to “accept the videos’ depictions as true because they contradict the allegations in the

Complaint”—specifically, Venisee’s claim that “he did not pose a threat to the officers when he was

shot.” Reply at 3–4 (citing Complaint ¶ 24). Venisee claims that we cannot consider the bodycam

footage because it depicts “unverified pieces of evidence that exceed the perimeters of the

Complaint[.]” Response at 2.

“Generally, when considering a motion to dismiss, the district court must limit its

consideration to the pleadings and any exhibits attached to it.” Baker v. City of Madison, Ala., 67 F.4th

3 Like the Defendants, we’ll refer to the two bodycams as BWC 1 and BWC 2.

1268, 1276 (11th Cir. 2023) (citing Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.

2000)). We also (usually) “must accept all factual allegations in [the] complaint as true and take them

in the light most favorable to plaintiff.” Dusek, 832 F.3d at 1246. But the “incorporation-by-reference”

doctrine “permit[s] district courts to consider materials outside a complaint at the motion-to-dismiss

stage.” Baker, 67 F.4th at 1276. “[A] court may properly consider a document not referred to or

attached to a complaint under the incorporation-by-reference doctrine if the document is (1) central

to the plaintiff’s claims; and (2) undisputed, meaning that its authenticity is not challenged.” Johnson,

107 F.4th at 1300. “[W]here a video is clear and obviously contradicts the plaintiff’s alleged facts, we

accept the video’s depiction instead of the complaint’s account, and view the facts in the light depicted

by the video.” Baker, 67 F.4th at 1277–78 (cleaned up) (first citing Pourmoghani-Esfahani v. Gee, 625 F.3d

1313, 1315 (11th Cir. 2010); and then citing Scott v. Harris, 550 U.S. 372, 381 (2007)); see also Brooks v.

Miller, 78 F.4th 1267, 1278 (11th Cir. 2023) (“So if a valid recording completely and clearly contradicts

a party’s testimony, the testimony is not credible, and the court should disregard it.”).

The Defendants have met both elements of the incorporation-by-reference doctrine here.

First, the videos are indisputably central to Venisee’s claims. Venisee’s claims all arise from the night

of January 16, 2022, when Sergeant Marckioli shot him as he “was fleeing on foot [and] being chased

by armed officers[.]” Complaint ¶ 25. Both videos depict this same chase and the shooting. See Johnson,

107 F.4th at 1301 (“The body camera and dashcam footage clearly depict the events that are central

to Johnson’s claims. The bodycam footage shows Rolfe’s interaction with Johnson from the time he

pulled Johnson over through him placing Johnson in the back of his patrol vehicle.”); Baker, 67 F.4th

at 1277 (“[T]he body camera footage depicts the events that are central to Baker’s claims. The footage

shows all the relevant conduct[.]”). Second, Venisee hasn’t meaningfully challenged the authenticity of

the footage. Although Venisee uses conclusory catchphrases like “unverified” and “contested” to

describe the videos, Response at 2–3, he never actually “argue[s] that the videos were altered in any

way or [that they] do not depict what actually happened[.]” Johnson, 107 F.4th at 1301. Venisee appears

to suggest that the footage is “contested” because “the actual shooting is not visible on the video.”

Response at 2–3. But the Eleventh Circuit has rejected a similar argument, holding that “incomplete”

bodycam videos can still be considered under the incorporation-by-reference doctrine so long as “they

clearly show unedited footage of the event underlying [the plaintiff’s] excessive force claim.” Swinford

v. Santos, 121 F.4th 179, 188 (11th Cir. 2024). In short, we can (and will) consider both bodycam videos

because they depict the incident in question and haven’t been “altered in any way[.]” Johnson, 107 F.4th

at 1301.

Venisee advances two additional arguments against our consideration of the videos—both

unpersuasive. First, Venisee observes that his “account of the subject events as alleged in the

Complaint differs greatly from Defendants’ characterization of the events in their Motion to Dismiss”

and says that we must defer to his version. Response at 3. While we would normally take this approach

at the motion-to-dismiss stage, the Eleventh Circuit has told us to defer to available video evidence

when it plainly contradicts the plaintiff’s allegations. See Baker, 67 F.4th at 1278 (“In sum, while

reviewing the district court’s ruling on the defendants’ motions to dismiss, we have credited, as we

must, Baker’s factual allegations where no obviously contradictory video evidence is available. But the

footage plainly contradicts Baker’s alleged version of events, leading us to view most of the facts as

depicted by the video.”).

Second, Venisee implies that it would be unfair for us to consider the bodycam videos without

first giving him the opportunity to conduct discovery. See Response at 3 (“Defendants’ Motion incites

an untimely factual dispute, knowing Plaintiff’s Counsel is at a loss without discovery.”). This

argument fails for two reasons. One, “the purpose of discovery is to find out additional facts about a

well-pleaded claim, not to find out whether such a claim exists.” Clearwater Consulting Concepts, LLP v.

Imperial Premium Fin., LLC, 2010 WL 916392, at *1 (S.D. Fla. Mar. 11, 2010) (Marra, J.). Two, it would

be much more unfair to force the Defendants to engage in discovery when there’s good reason to

believe they’re entitled to immunity. See Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002)

(“Because of the purpose served by the doctrine of qualified immunity, a valid defense based upon it

must be recognized as soon as possible, preferably at the motion to dismiss or summary judgment

stage of the litigation.”); Blinco v. Green Tree Serv., LLC, 366 F.3d 1249, 1252 (11th Cir. 2004)

(“[Q]ualified immunity protects government officials not only from having to stand trial, but from

having to bear the burdens attendant to litigation, including pretrial discovery.”).

Since we may consider the bodycam footage, we’ll now supplement Venisee’s allegations with

the videos themselves. Venisee admits that he “was a passenger in the back seat of a [stolen] vehicle

being followed by law enforcement.” Complaint ¶ 11. He also concedes that, after the driver crashed,

he “exited the vehicle and began running” from the police. Id. ¶ 14. But he insists that he didn’t pose

a danger to the officers and “adamantly denies holding a handgun upon exiting the vehicle.” Response

at 3. The bodycams tell a different story. Once Venisee and the driver fled the vehicle, one officer

immediately noticed that Venisee was holding a firearm. See BWC 2 at 1:34–1:35 (“He’s got a gun!”).

Officers repeatedly and loudly commanded Venisee to show his hands while giving chase. See BWC 1

at 0:22–0:24 (“Hey, get [or put] your fucking hands down!”); BWC 2 at 1:30–31 (“Show me your hands

. . . .”). While giving chase, one of the officers (presumably Sergeant Marckioli given the Complaint’s

allegations) noticed the gun, drew his weapon, and shot Venisee—all within a span of about two

seconds. See BWC 1 at 0:26–0:28 (yelling “gun, gun, gun!” before discharging the firearm). Once

Venisee was incapacitated, multiple officers confirmed that he had a gun. See BWC 1 at 0:29–0:31

(repeating “he’s got a gun” three times); BWC 2 at 1:44–1:46 (depicting same event). The gun was

later secured by law enforcement, see BWC 2 3:14–3:16, 8:58–9:00, and is even briefly visible on BWC

2 once the scene is secured, see id. at 18:13–18:18.

These bodycam videos (to be sure) aren’t perfect. Because the events took place at night—

and since the officers were in hot pursuit of fleeing suspects—much of the footage immediately

preceding the shooting is blurry. But the audio of these crucial moments and the post-shooting video

footage could not be clearer: The officers believed (accurately, as it turns out) that Venisee possessed

a firearm—and, despite repeated commands from the officers, Venisee failed to comply and show his

hands.

B. Sergeant Marckioli is Entitled to Qualified Immunity

Having found that we can consider both the Complaint and the bodycam footage at this stage

of the proceedings, we can now conduct a qualified-immunity analysis. The Defendants argue that

Sergeant Marckioli’s “use of force was reasonable” because he was “in pursuit of an armed suspect

who had fled on foot from the police in a stolen car and who had committed a felony in their

presence—occupying a stolen vehicle.” MTD at 5. And, they continue, even if the officer’s use of

force arguably violated Venisee’s constitutional rights, “there was no binding case law in existence

when this incident occurred that would have put a reasonable officer on notice that shooting a suspect

under similar circumstances would subject that officer to liability under the Fourth Amendment.” Id.

at 7–8. Venisee responds that he couldn’t have “pose[d] an imminent threat of physical harm to

Sergeant Marckioli, any of the other officers, or the public” because he “did not point a weapon or

threaten to use a weapon” and was merely “running away” from Sergeant Marckioli and the other

officers. Response at 4. He also cites Tennessee v. Garner, 471 U.S. 1 (1985), as clearly establishing that

“an officer is not permitted to use deadly force where there is no threat of harm.” Id. at 6 (citing

Garner, 471 U.S. at 3).4

4 Venisee also references two district court opinions: Fitch v. Scott, 2005 WL 1925028, at *7 (M.D. Fla.

Aug. 10, 2005) (Steele, J.), and Salgado v. City of West Miami, 85 F. Supp. 3d 1332, 1341 (S.D. Fla. 2015)

(King, J.). But, in our District, only the “decisions of the United States Supreme Court, the United

States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state (here,

the Supreme Court of Florida) can clearly establish the law.” McClish v. Nugent, 483 F.3d 1231, 1237

“To invoke the defense of qualified immunity, a government official must have been acting

within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Spencer v.

Benison, 5 F.4th 1222, 1230 (11th Cir. 2021). If the government official was acting within the scope of

his discretionary authority, “the burden shifts to the plaintiff to show that the official’s conduct (1)

violated federal law (2) that was clearly established at the relevant time.” Ibid. To qualify as clearly

established, a legal principle “must be established with obvious clarity by the case law so that every

objectively reasonable government official facing the circumstances would know that the official’s

conduct did violate federal law when the official acted.” Bradley v. Benton, 10 F.4th 1232, 1242 (11th

Cir. 2021) (quoting Waldron v. Spicher, 954 F.3d 1297, 1305 (11th Cir. 2020)). “Put another way, the

defendant must have fair notice of his conduct’s unconstitutionality which derives from one of the

following sources: (1) the obvious clarity of constitutional or statutory language; (2) broad holdings or

statements of principle in case law that are not tied to particularized facts; or (3) fact-specific judicial

precedents that are not fairly distinguishable.” Eloy v. Guillot, 289 F. App’x 339, 346 (11th Cir. 2008)

(cleaned up). The parties agree that Sergeant Marckioli “was acting in his capacity as a MDPD sergeant

at the time of the incident.” MTD at 4; see also Complaint ¶ 7 (“At all times material hereto, Officer

Marckiolo [sic] was acting under color of state law, within the course and scope of his employment

with Miami-Dade County.”). We must therefore determine whether Sergeant Marckioli violated

Venisee’s clearly established constitutional right. See Spencer, 5 F.th at 1230.

We’ll start with the basics. Being shot by a police officer (as Venisee was) constitutes a

“seizure” under the Fourth Amendment. See Torres v. Madrid, 592 U.S. 306, 318 (2021) (“[T]he officers’

shooting applied physical force to [the plaintiff’s] body and objectively manifested an intent to restrain

her from driving away. We therefore conclude that the officers seized Torres for the instant that the

(11th Cir. 2007); see also Reply at 7 (“[Fitch and Salgado] are district court decisions that cannot establish

law for purposes of the qualified immunity analysis.” (citing Thomas ex rel. Thomas v. Roberts, 323 F.3d

950, 953 (11th Cir. 2003)).

bullets struck her.”). The Fourth Amendment also “governs ‘a free citizen’s claim that law

enforcement officials used excessive force in the course of making an arrest, investigatory stop, or

other seizure of his person.’” Corbitt v. Vickers, 929 F.3d 1304, 1313 (11th Cir. 2019) (quoting Graham

v. Connor, 490 U.S. 386, 388 (1989)).

The Supreme Court in Graham held that “reasonableness” is an objective inquiry based on

“the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

490 U.S. at 396. “The reasonableness of force used can depend on a number of factors[,]” such as

“the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the

officers or others, and whether he was actively resisting arrest or attempting to evade arrest by flight.”

Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1229 (11th Cir. 2020) (cleaned up) (quoting Graham, 490

U.S. at 396). An officer’s use of “deadly force” is reasonable if “the officer had probable cause to

believe that the suspect posed a threat of ‘serious physical harm’ to the officer or others, and whether

the officer had given the suspect a warning about the use of deadly force, if doing so was feasible.”

Ibid. (citing McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009)); see also Garner, 471 U.S. at 11

(“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.”). As the Supreme Court recently reiterated, the “inquiry into the reasonableness

of police force requires analyzing the ‘totality of the circumstances,’” and we must be mindful that

“earlier facts and circumstances may bear on how a reasonable officer would have understood and

responded to later ones.” Barnes v. Felix, 2025 WL 1401083, at *4 (U.S. May 15, 2025).

Based on this precedent, we conclude that Sergeant Marckioli didn’t violate Venisee’s

constitutional rights when he shot him in the neck. When we take the allegations of the Complaint

and the events depicted in the bodycam together, we conclude that Marckioli knew the following facts

before he shot Venisee: (1) Venisee “was a passenger” in a vehicle that was “reported stolen,”

Complaint ¶¶ 11–12; (2) the stolen vehicle fled from police and did not stop until the driver crashed,

see id. ¶ 13 (“All of the passengers exited the vehicle and began running.”); (3) Venisee and the driver

immediately fled on foot after the crash, see generally BWC 1; BWC 2; (4) Venisee didn’t comply with

repeated, loud verbal commands from the officers to show his hands while they were chasing him, see

BWC 1 at 0:22–0:24; BWC 2 at 1:30–1:31; and (5) multiple officers (correctly) perceived that Venisee

was displaying a firearm and that he refused to put the gun down despite receiving clear verbal

commands to do so, see BWC 1 at 0:26–0:28; BWC 2 at 1:34–1:35. The law is well-settled that the use

of deadly force is reasonable “[w]here the officer has probable cause to believe that the suspect poses

a threat of serious physical harm, either to the officer or to others[.]” Garner, 471 U.S. at 11; see also

Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir. 2015) (“As to deadly force, a police officer may use

such force to dispel a threat of serious physical harm to either the officer or others, or to prevent the

escape of a suspect who threatens this harm.”).

And the Eleventh Circuit has confirmed that a reasonable officer is justified in using deadly

force to apprehend a fleeing suspect who has access to a firearm. See Jean-Baptiste v. Gutierrez, 627 F.3d

816, 821 (11th Cir. 2010) (“A suspect of violent crimes who had attempted to elude Officer Gutierrez

suddenly confronted Officer Gutierrez. The suspect was armed and posed a threat of serious physical

injury to Officer Gutierrez and to citizens in the surrounding residential area. . . . Officer Gutierrez

reasonably perceived the situation as an ambush that required the use of deadly force.”); Montoute v.

Carr, 114 F.3d 181, 185 (11th Cir. 1997) (“We accept for the present purposes that, once past Sergeant

Carr, Montoute never turned to face him again, and Montoute never actually pointed the sawed-off

shotgun at anyone. But there was nothing to prevent him from doing either, or both, in a split second.

At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until

an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.”).

As our recitation of the facts should make plain, a reasonable officer could have seen Venisee—fleeing

from a stolen vehicle, holding a firearm, and refusing to put it down despite repeated commands from

the officers—as a similarly serious threat of harm to himself and to others. See Jean-Baptiste, 627 F.3d

at 821 (“Officer Gutierrez was entitled to qualified immunity if he reasonably could have believed that

probable cause existed, in light of the information he possessed, to shoot Jean–Baptiste, even if that

belief was mistaken.” (cleaned up)).

Venisee tries to distinguish these cases and insists that he “was not accused or suspected of

any crime, was not running towards Officer Marckioli with a weapon, was half his size, and did not

assert any desire or intention to harm him or anyone else.” Response at 5. But Venisee fails to grapple

with the all-important fact that he displayed a firearm after he and another suspect led police officers

on a protracted chase in a stolen car. It’s true, of course, that “the mere presence of a gun or other

weapon is not enough to warrant the exercise of deadly force and shield an officer from suit.” Perez v.

Suszcynski, 809 F.3d 1213, 1220 (11th Cir. 2016). And the bodycam footage doesn’t reveal whether

Venisee merely brandished the gun or, instead, whether he aimed it at the pursuing officers. See BWC

1 at 0:26–0:28. But the “the reasonableness of [Marckioli’s] force depends on the threat posed by

[Venisee’s] access to his firearm . . . . So when an officer confronts an armed suspect ‘in a tense and

dangerous situation,’ the law does not require the officer to ‘hope for the best’ and ‘wait until the

moment a suspect uses a deadly weapon to stop the suspect.’” Jones v. Ceinski, __ F.4th ___, 2025 WL

1338079, at *4 (11th Cir. May 8, 2025) (quoting Jean-Baptiste, 627 F.3d at 821). Venisee and another

suspect were in a stolen car and fled from the police (both in the vehicle and later on foot) before

Officer Marckioli realized Venisee had a gun. See BWC 1 at 0:26–0:28; BWC 2 at 1:34–1:35. Venisee

then “refus[ed] to drop the gun and show his hands after being repeatedly ordered to do so by the

police officers.” MTD at 5; see also BWC 1 at 0:22–0:24; BWC 2 at 1:30–1:31. Faced with an armed,

recalcitrant suspect who was actively fleeing police—and who had just jumped out of a stolen

vehicle—Officer Marckioli didn’t need to wait and see whether Venisee would discharge the firearm

before using deadly force to subdue him. See Montoute, 114 F.3d at 185 (“At least where orders to drop

the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon

has drawn a bead on the officer or others before using deadly force.”); Jean-Baptiste, 627 F.3d at 821

(“Regardless of whether Jean–Baptiste had drawn his gun, Jean–Baptiste’s gun was available for ready

use, and Gutierrez was not required to wait and hope for the best.” (cleaned up)); Garczynski v.

Bradshaw, 573 F.3d 1158, 1169 (11th Cir. 2009) (“Garczynski repeatedly disobeyed the officers’ orders,

first to show his hands and then to drop his gun. These factors, even assuming that Garczynski never

pointed the gun at the officers, provided a sufficient basis for the officers reasonably to believe that

Garczynski posed an immediate risk of serious harm to them.”).5

Finally, even if Officer Marckioli had violated Venisee’s constitutional right, that right wasn’t

clearly established. A right isn’t “clearly established” unless “existing precedent [places] the statutory or

constitutional question beyond debate,” such that “every reasonable official would have understood

that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (cleaned up).

Venisee says that the Supreme Court in Garner “clearly held that an officer is not permitted to use

deadly force where there is no threat of harm.” Response at 6; accord Perez, 809 F.3d at 1222 (“Arango’s

Fourth Amendment right to be free from the use of deadly force when compliant and nonresistant

5 Venisee objects to the Defendants’ attempts to cast him as a suspected felon or an accessory to a

felony. See Response at 4–5 (“Unknowingly sitting in the backseat of a stolen vehicle is not a crime,

and is certainly not a felony. Vito was not, nor was he suspected to be the driver of the stolen vehicle.

At all times material hereto, the officers did not have reason to believe that Vito was aware the car

was stolen.”). This argument misses the point. The reasonableness of an officer’s force is “objective”

and is based on the totality of the circumstances; in other words, we ask only whether “the officers’

actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them.”

Graham, 490 U.S. at 397. Whether Venisee subjectively knew that he was in a stolen car is thus totally

irrelevant because a reasonable officer in Sergeant Marckioli’s shoes would have observed that Venisee

was in a stolen car, that he fled from the police, that he was carrying a gun, and that he refused to

comply with loud commands to show his hands. An officer in these same circumstances could easily

believe that Venisee “pose[d] an immediate danger to the officer or others,” even if Venisee never

intended to use the gun and was unaware that he was riding in a stolen car. Jean-Baptiste, 627 F.3d at

821.

was clearly established well before the night of the shooting in 2012.”). That’s true, but Garner also

held that an officer can use deadly force when “the officer has probable cause to believe that the

suspect poses a threat of serious physical harm, either to the officer or to others[.]” 471 U.S. at 11.

With this principle in mind, the Eleventh Circuit has repeatedly held that police officers can

use deadly force against an armed suspect who either has fled from the police or is not complying with

lawful commands. See Jean-Baptiste, 627 F.3d at 821 (“Officer Gutierrez found himself in a precarious

situation. A suspect of violent crimes who had attempted to elude Officer Gutierrez suddenly

confronted Officer Gutierrez. The suspect was armed and posed a threat of serious physical injury to

Officer Gutierrez and to citizens in the surrounding residential area.”); Garczynski, 573 F.3d at 1169

(“Garczynski repeatedly disobeyed the officers’ orders, first to show his hands and then to drop his

gun. These factors, even assuming that Garczynski never pointed the gun at the officers, provided a

sufficient basis for the officers reasonably to believe that Garczynski posed an immediate risk of

serious harm to them.”); Montoute, 114 F.3d at 185 (“We accept for the present purposes that, once

past Sergeant Carr, Montoute never turned to face him again, and Montoute never actually pointed

the sawed-off shotgun at anyone. But there was nothing to prevent him from doing either, or both,

in a split second. At least where orders to drop the weapon have gone unheeded, an officer is not

required to wait until an armed and dangerous felon has drawn a bead on the officer or others before

using deadly force.”). In our case, of course, we have both: Venisee, an armed suspect, had fled from

police and was refusing to comply with lawful commands. We thus agree with the Defendants that

there’s no “binding precedent holding the force used here by Sgt. Marckioli is clearly excessive in

dealing with an armed, fleeing suspect who had just committed a felony and was resisting arrest while

running with a gun in a public street.” MTD at 8. In fact, we think a reasonable officer would almost

certainly draw the opposite conclusion. See Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.

2000) (“In the context of Fourth Amendment excessive force claims, we have noted that generally no

bright line exists for identifying when force is excessive; we have therefore concluded that unless a

controlling and materially similar case declares the official’s conduct unconstitutional, a defendant is

usually entitled to qualified immunity.”).

Because Sergeant Marckioli didn’t use excessive force against Venisee, the state-law battery

claim Venisee pled in Count VI necessarily fails. “Battery claims for excessive force under Florida law

are ‘analyzed by focusing upon whether the amount of force used was reasonable under the

circumstances.’ [We apply] the same Fourth Amendment excessive force analysis to a battery claim

against an officer under Florida law.” Baxter v. Santiago-Miranda, 121 F.4th 873, 891–92 (11th Cir. 2024)

(quoting Kimbrel v. Clark, 385 So. 3d 1124, 1128 (Fla. 1st DCA 2024)); see also City of Miami v. Sanders,

672 So. 2d 46, 47 (Fla. 3d DCA 1996) (“If excessive force is used in an arrest, the ordinarily protected

use of force by a police officer is transformed into a battery.”). In short, because “[Sergeant

Marckioli’s] use of force was not excessive, [Venisee’s] battery claim[ ] fail[s] as well.” Baxter, 121 F.4th

at 891.

* * *

The Supreme Court has repeatedly said that qualified immunity “provides ample protection

to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341 (1986). Given the facts of this case, we find that Sergeant Marckioli’s decision to shoot

Venisee wasn’t the product of incompetence or deliberate indifference to the law. Because Sergeant

Marckioli is entitled to qualified immunity—and isn’t liable for battery under Florida law—we

DISMISS Counts I and VI of the Complaint.

II. The Municipal-Liability Claims (Counts II and III)

Counts II and III of the Complaint allege that the County “maintained policies and practices

exhibiting deliberate indifference to the Constitutional rights of Miami-Dade County citizens which

caused the violation of Vito Corleon Venisee’s rights.” Complaint ¶ 31. As to Count II, Venisee insists

that the County has a “decades-long practice of using excessive force” and that it refused to “remediate

[this] longstanding practice[.]” Id. ¶¶ 34–35. Similarly, Venisee claims in Count III that the County’s

“failure to properly train, discipline, and supervise Defendant Marckioli, demonstrates deliberate

indifference to the rights and safety of the citizens of Miami-Dade County, including [Venisee].” Id. ¶

42. The Defendants counter that Venisee’s allegations lack a “sufficient factual predicate” and

therefore cannot establish municipal liability under § 1983. MTD at 10. We agree.

“[U]nder § 1983, local governments are responsible for their own illegal acts. They are not

vicariously liable for their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (cleaned

up). “It is only when the execution of the government’s policy or custom inflicts the injury that a

municipality may be held liable under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)

(cleaned up). Thus, to impose municipal liability under § 1983, the plaintiff must show: “(1) that his

constitutional rights were violated; (2) that the municipality had a custom or policy that constituted

deliberate indifference to that constitutional right; and (3) that the policy or custom caused the

violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton, 489 U.S. at

388). “The Supreme Court has held that ‘official municipal policy includes the decisions of a

government’s lawmakers, the acts of its policy making officials, and practices so persistent and

widespread as to practically have the force of law.’” Purcell v. City of Ft. Lauderdale, 753 F. Supp. 3d

1308, 1342 (S.D. Fla. 2024) (Altman, J.) (cleaned up) (quoting Connick, 563 U.S. at 61); see also Grech v.

Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc) (“A plaintiff . . . has two methods

by which to establish a [municipal] policy: identify either (1) an officially promulgated [municipal]

policy or (2) an unofficial custom or practice of the [municipality] shown through the repeated acts of

a final policymaker for the [municipality].”).

Venisee’s municipal liability claim (Count II) fails for two reasons. First, Sergeant Marckioli

didn’t use excessive force, see ante, at 10–13, so Venisee can’t show that “his constitutional rights were

violated” by anyone (let alone by the County), McDowell, 392 F.3d at 1289. Second, Venisee comes

nowhere close to alleging that the County “had a custom or policy that constituted deliberate

indifference to that constitutional right[.]” Ibid. To be sure, Venisee offers conclusory allegations that

the County maintains several nefarious policies—viz., that it “inadequately and improperly

investigate[s] citizen complaints of police misconduct[,]” “inadequately train[s] and supervise[s] its

police officers,” “fail[s] to remediate the longstanding practice of Miami-Dade police officers using

excessive force[,]” and “fail[s] to evaluate the widespread use of excessive force, sufficiently reprimand

and discipline officers for their unlawful use of excessive force, and alter the policy and practice of

condoning excessive force within the [MDPD].” Complaint ¶¶ 32–34, 46. But a plaintiff can’t simply

allege that a municipality maintains unconstitutional policies and customs and call it a day; he must

support this accusation with “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Hall v. Smith, 170

F. App’x 105, 107–08 (11th Cir. 2006) (“Vague and conclusory allegations will not support a claim

under § 1983.” (citing Marsh v. Butler, 268 F.3d 1014, 1036 n.16 (11th Cir. 2001))); Thomas v. City of

Americus, Ga., 2023 WL 2485464, at *3 (11th Cir. Mar. 14, 2023) (“[The plaintiff’s] claim rests on a

conclusory allegation that the city ‘apparently had a custom or policy not to intervene in cases of

domestic violence.’ This is insufficient.”); Cluff v. Miami-Dade Cnty., 2022 WL 700971, at *4 (S.D. Fla.

Feb. 1, 2022) (Williams, J.) (“Plaintiffs cannot manufacture a County or Miami-Dade Fire custom

based on broad-sweeping conclusory statements without citation to any supporting documents or

other specific examples indicative of such a custom.”), aff’d, 2022 WL 16757095 (11th Cir. Nov. 8,

2022). The only “evidence” Venisee presents to support his municipal-liability claims is his own

shooting, but “[p]roof of a single incident of unconstitutional activity is not sufficient to impose

liability[.]” Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (cleaned up).

Venisee’s constitutional failure-to-train claim (Count III) fails for similar reasons. “[M]unicipal

liability also may be based on a claim of inadequate training ‘where a municipality’s failure to train its

employees in a relevant respect evidences a deliberate indifference to the rights of its inhabitants such

that the failure to train can be properly thought of as a [municipal] policy or custom that is actionable

under § 1983.’” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489–90 (11th Cir. 1997) (cleaned up)

(quoting City of Canton, 489 U.S. at 389). To show this “deliberate indifference,” Venisee “must present

some evidence that the municipality knew of a need to train and/or supervise in a particular area and

the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346,

1350 (11th Cir. 1998). Again, the only allegations in the Complaint showing that the County “knew”

of a need to train its officers is Venisee’s own personal experience with Sergeant Marckioli and his

conclusory statement that the County “failed to evaluate the widespread use of excessive force,

sufficiently reprimand and discipline officers for their unlawful use of excessive force, and alter the

policy and practice of condoning excessive force within the [MDPD].” Complaint ¶ 46. As with Count

II, bare allegations of the County’s allegedly lackadaisical training programs are insufficient to state a

claim as a matter of law. See Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1053–54 (11th Cir. 2014) (“As

the Supreme Court has indicated, ‘a supervisor’s culpability for a deprivation of rights is at its most

tenuous where a claim turns on a failure to train.’ Keith’s claim that Sheriff Brown violated Cook’s

constitutional rights by failing to adequately train detention officers is especially tenuous because not

only does she fail to demonstrate that Sheriff Brown was on notice, she also fails to demonstrate how

‘better training’ would have prevented the incident leading to Cook’s death.” (cleaned up) (quoting

Connick, 563 U.S. at 61)).

Perhaps cognizant of these flaws, Venisee “requests the opportunity to amend this complaint

to address [these] factual deficiencies.” Response at 8. As an initial matter, “a plaintiff who wishes to

amend his complaint must file a motion seeking leave to do so”; he can’t (as Venisee has done here)

simply “request . . . leave to file a amended complaint . . . [in] an opposition memorandum[.]” Doe v.

Emory Univ., 110 F.4th 1254, 1263 n.3 (11th Cir. 2024) (cleaned up). This defect aside, we wouldn’t

grant Venisee leave to amend even if his request were procedurally proper. A district court may deny

a motion to amend “(1) where there has been undue delay, bad faith, dilatory motive, or repeated

failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would

cause undue prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v.

Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A request

to amend is “futile” if “an amended complaint would still fail at the motion-to-dismiss or summary-

judgment stage.” L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020). For two

reasons, we find that any attempt to amend Counts II and III would be futile.

First, as we’ve said, the limited record before us is sufficient to show that Sergeant Marckioli

didn’t deploy excessive force against Venisee. See ante, at 10–13, 16. Since Sergeant Marckioli never

violated Venisee’s constitutional rights, there can be no causal connection between Venisee’s injuries

and the County’s allegedly unconstitutional customs or training policies. See McDowell, 392 F.3d at 1289

(“[A] plaintiff must show . . . that his constitutional rights were violated [and] that the [municipal]

policy or custom caused the violation.”). Second, Venisee appears to admit that he can’t plead additional

facts without the benefit of discovery. See Response at 8 (“Without the benefit of discovery, Plaintiff

is at an unenviable disadvantage.”). While we appreciate his frustration, Venisee can’t simply allege

that the County has an unconstitutional policy or custom and then hope that discovery will later

substantiate his claim. See Iqbal, 556 U.S. at 678–79 (“[Rule 8] does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”); Sovereign Bonds Exch. LLC v. Fed. Republic

of Ger., 2011 WL 13100214, at *2 (S.D. Fla. Aug. 9, 2011) (Altonaga, J.) (“Parties may not file

insufficient complaints with the hope of receiving discovery to make them sufficient.”).

Because Venisee has failed to allege that the County can be held liable under § 1983—and

since any attempt to amend his Complaint would be futile—we DISMISS Counts II and III.

III. The Negligent-Training and Negligent-Supervision Claims (Counts IV and V)

In his final two counts, Venisee alleges that the MDPD negligently trained and supervised

Sergeant Marckioli in violation of Florida law. See Complaint ¶ 56 (“[MDPD’s] negligent supervision

of Miami-Dade Police officers, including [Marckioli] was a direct and proximate cause of [Venisee’s]

injuries.”); id. ¶ 61 (“Upon information and belief, the training provided to law enforcement officers

at the Miami-Dade Police Department was brief, incomplete, and adversely impacted by guidance

from other improperly trained officers, including those in positions of leadership.”). The Defendants

initially asked us to dismiss these claims because “police departments are not legal entities amenable

to suit.” MTD at 15 (quoting Williams v. Miami-Dade Police Dep’t, 297 F. App’x 941, 945 (11th Cir.

2008)). Venisee, to his credit, concedes this point, but he asks us for permission to amend so that he

can assert Counts IV and V against the County instead. See Response at 8 (“Plaintiff concedes that

based on precedent, [the MDPD] cannot be sued. The allegations asserted against [MDPD] in Counts

IV and V are more appropriately attributed to Defendant Miami-Dade County. Accordingly, Plaintiff

requests permission to amend the complaint to cure this deficiency.”). The Defendants then asked us

to dismiss Counts IV and V anyway because “leave to amend . . . would be futile[.]” Reply at 9.6 Here,

again, we agree with the Defendants.

As to these two counts, any amendment would be futile because Venisee cannot assert state-

law, negligent-supervision and negligent-training claims against the County. Starting with negligent

supervision, “a plaintiff must establish that the employer owed a legal duty to the plaintiff to exercise

6 Because Venisee’s request to amend is improper, we could dismiss Counts IV and V on this basis

alone. See Doe, 110 F.4th at 1263 n.3 (“Under our precedent, where a request for leave to file an

amended complaint simply is imbedded within an opposition memorandum, the issue has not been

raised properly. Rather, a plaintiff who wishes to amend his complaint must file a motion seeking leave

to do so.” (cleaned up)).

reasonable care in hiring and retaining safe and competent employees.” Thomas v. Indian River Cnty.

Sheriff’s Dep’t, 2021 WL 12171820, at *5 (S.D. Fla. Oct. 4, 2021) (Marra, J.). But this tort “requires that

the actions of the employee be outside the course and scope of the employee’s employment.” City of

Boynton Beach v. Weiss, 120 So. 3d 606, 610 (Fla. 4th DCA 2013); see also Poulin v. Bush, 650 F. Supp. 3d

1280, 1307 (M.D. Fla. 2023) (Jung, J.) (“A claim for negligent retention and supervision requires an

employee’s wrongful conduct to have been committed outside the scope of employment.”).7 There’s

no dispute that Sergeant Marckioli “was acting . . . within the scope of his employment with Miami-

Dade County” when he shot Venisee, so the County cannot be liable for negligently supervising

Sergeant Marckioli at the time of the shooting. Complaint ¶ 7.

Venisee’s negligent-training claim fares no better. “A plaintiff asserting a negligent training

claim must allege that it was harmed as a result of an employer’s failure to adequately train an

employee, and that the nature of the employment put the plaintiff in a ‘zone of risk’ such that the

employer had a duty running to the plaintiff.” Adler v. WestJet Airlines, Ltd., 31 F. Supp. 3d 1381, 1388

(S.D. Fla. 2014) (Cohn, J.). Unfortunately for Venisee, a Florida municipality is “immune from tort

liability based upon actions that involve its ‘discretionary’ functions, such as development and planning

of governmental goals and policies.” Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001).

Both Florida and federal courts have concluded that municipalities are immune under Florida law

from suits alleging that they negligently trained their police officers. See Gualtieri v. Bogle, 343 So. 3d

1267, 1276 (Fla. 2d DCA 2022) (“Here, the pertinent allegations in count three clearly relate to the

Sheriff’s decisions of how to train his deputies and what subject matter to include in said training.

These alleged deficiencies in the Sheriff's training of his deputies involve discretionary, planning-level

functions for which the Sheriff is entitled to sovereign immunity.”); see also Lewis, 260 F.3d at 1266 (“A

7 “The terms ‘negligent supervision’ and ‘negligent retention’ are essentially interchangeable” under

Florida law. Watts v. City of Hollywood, Fla., 146 F. Supp. 3d 1254, 1262 n.4 (S.D. Fla. 2015) (Altonaga,

J.).

city’s decision regarding how to train its officers and what subject matter to include in the training is

clearly an exercise of governmental discretion regarding fundamental questions of policy and planning.

... [Ihe ‘discretionary’ function exception to the waiver of sovereign immunity applies and her claim

is barred.”); Whitaker v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1331 (S.D. Fla. 2015) (Lenard, J.)

(same). In sum, sovereign immunity bars Venisee from advancing a state-law negligent-training claim

against the County.

Counts IV and V of the Complaint are against a Defendant that cannot be sued (MDPD).

And we won’t give Venisee leave to fix this mistake because the County cannot be sued for negligent

supervision or negligent training under these circumstances. Counts IV and V are therefore

DISMISSED.

CONCLUSION

After careful review, we hereby ORDER and ADJUDGE as follows:

1. The Defendants’ Motion to Dismiss [ECF No. 14] is GRANTED. Venisee’s Complaint

[ECF No. 1] is DISMISSED.

2. All deadlines and hearings are TERMINATED, and any other pending motions are

DENIED as moot.

3. ‘This case shall remain CLOSED.

DONE AND ORDERED in the Southern District a

ROYK.ALTMAN sts”

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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