Treneshia Dukes v. Nicholas Deaton

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-14373

________________________

D.C. Docket No. 1:12-cv-02517-ELR

TRENESHIA DUKES,

Plaintiff - Appellant,

versus

NICHOLAS DEATON,

in his individual capacity,

STEVE BRANHAM,

in his individual and supervisory capacity,

Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(January 26, 2017)

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Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and UNGARO, *

District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal requires that we decide whether a police officer who threw a

diversionary device, known colloquially as a “flashbang,” into a dark room

occupied by two sleeping individuals, without first visually inspecting the room, is

entitled to qualified immunity against a complaint of excessive force, 42 U.S.C.

§ 1983, and to official immunity against a complaint of assault and battery. At

dawn, officers of the Clayton County, Georgia, Narcotics Unit executed a search

warrant for Jason Ward’s apartment. Ward and his girlfriend, Treneshia Dukes,

were asleep in his bedroom. After an officer detonated a flashbang outside the

apartment and another officer broke the glass in a window to the bedroom, Officer

Nicholas Deaton threw a flashbang into the bedroom. The flashbang exploded near

Dukes, who suffered serious burns. Dukes filed a complaint against Deaton and

Deaton’s supervisor, Commander Stephen Branham, for excessive force, assault,

and battery. The district court granted the officers summary judgment on the

grounds that they are immune from suit. Although we agree with Dukes that

Deaton used excessive force, we also agree with the district court that Deaton is

entitled to qualified immunity because it was not clearly established that his

*

Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida,

sitting by designation.

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conduct violated the Constitution. And he is entitled to official immunity because

Dukes offers no proof that Deaton intended to injure Dukes. Deaton’s supervisor,

Branham, also enjoys qualified immunity from the complaint against his

subordinate. We affirm.

I. BACKGROUND

On July 19, 2010, a special agent with the Narcotics Unit of Clayton County,

Georgia, obtained a warrant to search Jason Ward’s apartment. The application for

the warrant stated that a confidential informant had observed a “small quantity of a

green leafy substance suspected to be marijuana” in the possession of Ward. The

application also stated that Ward had several arrests for possession of marijuana,

sold narcotics from his apartment, and was known to carry a silver nine-millimeter

handgun. The application sought a “no-knock” provision because “drug dealers

commonly utilize weapons, dogs, and barricades to hinder law enforcement in the

execution of their duties.” A magistrate judge approved the no-knock provision.

Ward resided in a two-bedroom apartment on the first floor of an apartment

complex. The front door to the apartment lay halfway down a short hallway. A

window in Ward’s bedroom faced an outdoor courtyard. Adjacent to Ward’s

bedroom, a living room with sliding glass doors opened onto a small balcony

overlooking the courtyard.

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To execute the search warrant, Stephen Branham, the commander of the

county SWAT team, prepared an operational plan with four teams: Alpha, Bravo,

Charlie, and Delta. Alpha was the “entry team.” Its job was to breach the main

door to Ward’s apartment and secure the persons inside. Bravo was the support

team. Its job was to wait outside and enter the apartment through the sliding glass

door if help was needed. Deaton was a member of Bravo team. Charlie was a

diversion team. Its job was to divert Ward’s attention by performing a “break and

rake” on his bedroom window. A break and rake is a tactic in which an officer

breaks and clears out all of the glass in a window. This tactic is used to cover a

room until the rest of the officers make entry. It is also used as a diversionary

tactic. Delta team, composed of only Officer Suzanne Bennett, was also a diversion

team. Bennett’s job was to deploy a “bang-pole,” a stick with a flashbang on the

end of it, on the outside wall of the apartment.

The flashbang manual used by the county SWAT team explains that police

use flashbangs in “high-risk warrant service” to “minimize the risk to all parties

through the temporary distraction or disorientation of potentially violent or

dangerous subjects.” The manual classifies flashbangs as explosives that can

generate heat in “excess of 2,000 degrees centigrade,” a flash of light up to 80

times brighter than the flashbulb of a camera, and over 150 decibels of noise for

less than one half of a second. Because flashbangs have the potential to cause

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“serious bodily injury,” Deaton and Branham testified that they received official

instruction to visually inspect an area first before deploying a flashbang. The

operational plan contemplated the use of two flashbangs––one thrown by Officer

Scott Malette through the front door, the other deployed by Officer Bennett with

the bang-pole. But the plan vested all SWAT team members with the authority to

use more flashbangs if needed.

At 5:00 a.m. on July 21, the SWAT team members met to review the

operational plan. Half an hour later, the SWAT team executed the warrant. Ward

and his girlfriend, Treneshia Dukes, were asleep in the bedroom of Ward’s

apartment. Ward was awakened by a “boom” and then heard his “window break

and shattering.” Next, he remembered “Treneshia screaming,” telling “her to get

down,” then grabbing the “pistol up under my head – up under my pillow,” and

“kicking into the hallway.” Ward never discharged his gun. Dukes heard a “boom,

and then [heard] the window like rattling and shattering . . . , and like as I’m

waking up I just seen an object coming towards me.” Dukes did not see who threw

the object because she “was asleep.” After the object hit her and exploded, Dukes

ran into the bathroom where she was detained by the police.

The SWAT team detonated three flashbangs during the search. Bennett and

Mallette deployed their flashbangs as the operational plan prescribed. Deaton

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deployed the third flashbang. He was the only officer outside the window with a

flashbang and testified that he threw his flashbang outside the window.

Although Deaton argues that his flashbang detonated outside the apartment,

we construe the facts and draw all inferences from the evidence in the light most

favorable to the non-movant, Dukes. Mize v. Jefferson City Bd. of Educ., 93 F.3d

739, 742 (11th Cir. 1996). Viewed in that light, Deaton threw the flashbang

through the bedroom window where it landed near Dukes. Dukes testified that an

object came through the window; that she was under a comforter; that the object

landed on her right thigh; that the object “flashed” and “exploded”; that the

explosion “blinded” her; and that the sound from the object “discombobulated”

her, causing her run “into the [bedroom] wall.” Several witnesses who saw the

bedroom after the search testified that the walls were covered in black residue

consistent with an explosion. For example, Andrea Ward, who was asleep in the

second bedroom of the apartment the morning of the raid, testified that “the

bedroom looked like it had been on fire, the window was busted out. The room was

a mess and there was a black something, smoke and stuff on the walls, black

smoke was on the walls in the hallway also.”

Dukes suffered severe burns across both thighs and her right arm that

Deaton testified were consistent with the detonation of a flashbang. She was

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admitted to the hospital for three days after the raid. Ward was arrested and later

convicted of being a felon in possession of a firearm.

Dukes filed a complaint against Officer Deaton and Commander Branham in

the district court. The complaint alleged a violation of Dukes’s right to be free

from excessive force under the Fourth Amendment, 42 U.S.C § 1983, and state law

claims of assault and battery against Deaton. She alleged a claim of supervisory

liability against Branham.

After the close of discovery, Branham and Deaton moved for, and the

district court granted, summary judgment. The district court inferred in Dukes’s

favor that Deaton threw a flashbang that landed on Dukes, but concluded that

Deaton was entitled to qualified immunity against the claim of excessive force,

official immunity against the claims of assault and battery, and that Branham was

entitled to qualified immunity against the claim of supervisory liability.

II. STANDARD OF REVIEW

We review de novo whether the officers are entitled to immunity. Hoyt v.

Cooks, 672 F.3d 972, 981 (11th Cir. 2012) (official immunity); Townsend v.

Jefferson Cty., 601 F.3d 1152, 1157 (11th Cir. 2010) (qualified immunity).

Summary judgment is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “In an appeal of a denial of summary judgment based on qualified

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immunity, ‘[a]ll evidence must be viewed in the light most favorable to the

nonmoving party.’” Townsend, 601 F.3d at 1157 (alteration in original) (quoting

Crosby v. Monroe Cty., 394 F.3d 1328, 1332 (11th Cir. 2004)).

III. DISCUSSION

Dukes challenges the grants of immunity to both Deaton and Branham.

Dukes argues that the district court erred when it granted Deaton qualified

immunity against her claim of excessive force, when it granted Deaton official

immunity against her claims of assault and battery, and when it granted Branham

qualified immunity against her claim of supervisory liability. These arguments fail.

Both officers are entitled to immunity. Although we conclude that Deaton’s

conduct violated the Fourth Amendment, qualified immunity protects him from

suit because his violation was not clearly established in law when he acted. And

official immunity protects Deaton from Dukes’s complaint of assault and battery

because she offers no evidence that he threw the flashbang with the intent to injure

her. Qualified immunity also protects Branham because his subordinate’s

constitutional violation was not clearly established.

A. Deaton is Entitled to Qualified Immunity.

“Qualified immunity protects . . . officers from liability in [section] 1983

actions as long ‘as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Lewis v.

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City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The officer bears the initial burden to prove

that he acted within his discretionary authority, Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002), which neither party disputes in this appeal. With

discretionary authority established, the burden shifts to Dukes to prove that Deaton

is not entitled to qualified immunity. Id.

To determine whether an officer is not entitled to qualified immunity at

summary judgment, we employ a two-part inquiry. First, we ask “whether the

facts, [t]aken in the light most favorable to the party asserting the injury, . . . show

[that] the officer’s conduct violated a [federal] right.” Salvato v. Miley, 790 F.3d

1286, 1292 (11th Cir. 2015) (first and third alterations in original) (quoting Tolan

v. Cotton, 134 S. Ct. 1861, 1865 (2014)). Second, we ask “whether the right in

question was ‘clearly established’ at the time of the violation.” Id. (quoting Tolan,

134 S. Ct. at 1866). When we perform this analysis, we “may not resolve genuine

disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S.

Ct. at 1866. Our function at summary judgment is to “determine whether there is a

genuine issue for trial,” not to weigh the evidence. Id. (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986)).

As a threshold matter, Dukes argues that the record supports a factual

inference that Deaton intentionally threw the flashbang at Dukes, but we disagree.

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In support of her argument, Dukes cites the testimony of Deaton and Branham that

their training requires a visual inspection of an area before they deploy a flashbang

into that area. This testimony does not warrant the inference that Deaton looked

into the bedroom, saw Dukes, and threw the flashbang toward her. Dukes’s

argument would require us to infer that Deaton followed his training in one way by

looking into the room, but ignored his training in another way by purposefully

harming a bystander, Dukes. Although we must draw all inferences in favor of the

non-movant at summary judgment, those inferences must be plausible. Mize, 93

F.3d at 742–43. The record does not support a reasonable inference that Deaton

intentionally threw the flashbang at Dukes.

1. Deaton Violated the Fourth Amendment.

Dukes argues, and we agree, that Deaton’s deployment of the flashbang

constituted excessive force in violation of the Fourth Amendment. Official action

constitutes excessive force when it is objectively unreasonable. Salvato, 790 F.3d

at 1293. To measure the objective reasonableness of official action, we weigh “the

quantum of force employed” against “the severity of the crime at issue; whether

the suspect poses an immediate threat to the safety of the officers or others; and

whether the suspect actively resisted arrest or attempted to evade arrest by flight.”

Id. (citation omitted). But we do not apply these factors mechanically. Id. Whether

an officer’s actions are “objectively reasonable” is a function of “the facts and

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circumstances confronting them, without regard to their underlying intent or

motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (citation omitted).

The facts construed in the light most favorable to Dukes establish that

Deaton used excessive force. Deaton’s conduct posed a significant risk of harm.

He threw a flashbang that can generate heat in excess of 2,000 degrees Celsius into

a dark room in which the occupants were asleep. He also failed to inspect the

room, as he was trained to do, to determine whether bystanders, such as Dukes,

occupied the room or if other hazards existed. And there existed minimal need for

Deaton’s use of force. True, the warrant stated that an informant advised law

enforcement that Ward kept a handgun on his person, and the applying officer

attested that drug dealers are known to be violent. Perhaps this record could have

supported the use of the two flashbangs contemplated by the operational plan to

disorient the occupants of the apartment. We need not decide that question. Even if

the record supports the use of the first two flashbangs, these earlier flashbangs

made Deaton’s deployment gratuitous. The break and rake and the detonation of

the flashbang on the exterior wall diverted the attention of Ward and Dukes before

Deaton deployed his flashbang. There is no evidence that Deaton was aware that

Ward had drawn his gun or that Dukes or Ward resisted the officers. And the

suspected crime that prompted the search was possession and sale of marijuana.

Deaton deployed a dangerous device into a dark room for a de minimis return.

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The decisions of our sister circuits support our conclusion that Deaton’s

conduct was unconstitutional. Our sister circuits have held that an officer’s failure

to perform a visual inspection before throwing a flashbang into an area weighs

against reasonableness. Estate of Escobedo v. Bender, 600 F.3d 770, 785 (7th Cir.

2010); Boyd v. Benton Cty., 374 F.3d 773, 779 (9th Cir. 2004). And they have held

that the use of a flashbang in an area occupied by bystanders, like Dukes, similarly

weighs against reasonableness. Bender, 600 F.3d at 786; Boyd, 374 F.3d at 779; cf.

Krause v. Jones, 765 F.3d 675, 679 (6th Cir. 2014); Molina ex rel. Molina v.

Cooper, 325 F.3d 963, 973 (7th Cir. 2003). The totality of the circumstances

establishes that Deaton violated the Fourth Amendment.

2. Deaton’s Violation Was Not Clearly Established.

To overcome qualified immunity, Dukes also must prove that Deaton

“violated a statutory or constitutional right that was ‘clearly established’ at the time

of the challenged conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)

(quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735 (2011)). Official conduct violates

clearly established law if the “contours of [a] right [are] sufficiently clear that

every reasonable official would [have understood] that what he is doing violates

that right.” Al-Kidd, 563 U.S. at 741 (alterations in original) (internal quotation

marks omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Because no precedent of the Supreme Court, our Circuit, or the Supreme Court of

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Georgia has addressed the constitutionality of flashbangs, Dukes must establish

that “a general constitutional rule already identified in the decisional law . . .

appl[ies] with obvious clarity” to Deaton’s conduct. Hope v. Pelzer, 536 U.S. 730,

741 (2002) (citations omitted).

To satisfy this narrow exception, official conduct must be so egregious that

“every objectively reasonable government official facing the circumstances would

know that the official’s conduct did violate federal law.” Coffin v. Brandau, 642

F.3d 999, 1015 (11th Cir. 2011) (en banc) (quoting Vinyard v. Wilson, 311 F.3d

1340, 1351 (11th Cir. 2002)). When this exception for obvious clarity is “properly

applied, it protects all but the plainly incompetent or those who knowingly violate

the law.” Al-Kidd, 563 U.S. at 743 (internal quotation marks omitted) (citations

omitted). It allows an officer to make “reasonable mistakes” about the law. Saucier

v. Katz, 533 U.S. 194, 205 (2001).

We conclude that it was not clearly established that Deaton’s conduct was

unconstitutional when he acted. Although we recognize that the doctrine of

excessive force makes some official conduct off limits even in “novel factual

circumstances,” Pelzer, 536 U.S. at 741, Deaton’s conduct was not so lacking in

justification that every reasonable officer would know that what he did constituted

excessive force. The operational plan contemplated the use of flashbangs to

disorient the residents, and there is no evidence Deaton intended to use his

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flashbang for any other purpose. And the application in support of the search

warrant stated that “drug dealers,” such as Ward, “commonly utilize weapons,

dogs, and barricades to hinder law enforcement in the execution of their duties.”

The application also stated that an informant had advised law enforcement that

Ward carried a handgun “on his person.” To be sure, Deaton should have followed

his training and checked the bedroom before he threw. But a reasonable officer

could have found it “difficult . . . to determine how the relevant legal doctrine, here

excessive force,” would apply. Katz, 533 U.S. at 205.

Dukes argues that “no decisional law is necessary to inform a reasonable

officer that he should not blindly throw a [flashbang] grenade into the bedroom of

a small apartment, at 5:30 a.m., . . . occupied[] by people who . . . were doing

nothing other than sleeping,” but this portrait ignores facts stated in the warrant

and the purpose of a flashbang. Ward carried a weapon. The warrant stated that

drug trafficking occurred in his apartment. A flashbang is meant to disorient and

avoid physical harm. And the operational plan permitted the officers to use a

flashbang if needed. In the absence of binding caselaw to the contrary, Deaton,

though badly mistaken, could have reasonably believed, based on the facts known

to the officers on the morning of the search, that throwing a flashbang into Ward’s

bedroom was not excessive force.

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Our conclusion that Deaton violated the Fourth Amendment, but that the

contours of the right were not clearly established, also finds support in the

decisions of our sister circuits. In Boyd, for example, the Ninth Circuit ruled that

the detonation of a flashbang in a room with up to eight bystanders without first

looking was unconstitutional, but that the right was not clearly established. 374

F.3d at 783–84. In Bing ex rel. Bing v. City of Whitehall, the Sixth Circuit also

decided that the use of a second flashbang violated the Fourth Amendment, but

that the violation was not obvious. 456 F.3d 555, 571 (6th Cir. 2006). Consistent

with these decisions, we affirm the ruling that Deaton is entitled to qualified

immunity.

B. Deaton is Entitled to Official Immunity.

With two exceptions, the Constitution of Georgia protects public officials

from personal liability for actions performed in their official capacity. Ga. Const.

Art. I, § II, para. IX. Official immunity does not apply to ministerial acts

performed negligently or discretionary acts performed “with actual malice or with

intent to cause injury.” Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga. 2007) (citation

omitted). Dukes raises issues about both exceptions.

Dukes argues that the district court erred when it granted Deaton official

immunity against her tort claims. Dukes argues that Deaton negligently performed

a ministerial act when he deployed the flashbang, or, in the alternative, that the

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deployment of a flashbang was a discretionary act that Deaton performed with

actual malice. Both arguments fail.

Settled Georgia caselaw delineates between ministerial and discretionary

acts. “A ministerial act is commonly one that is simple, absolute, and definite,

arising under conditions admitted or proved to exist, and requiring merely the

execution of a specific duty.” Id. at 57 (citation omitted). By contrast, “A

discretionary act . . . calls for the exercise of personal deliberation and judgment,

which in turn entails examining the facts, reaching reasoned conclusions, and

acting on them in a way not specifically directed.” Id. (citation omitted).

Deaton’s use of a flashbang was discretionary. It called for the “exercise of

personal deliberation” because an officer must “examin[e] the facts” and “act[] on

[those facts] in a way not specifically directed.” Bajjani, 647 S.E.2d at 57 (citation

omitted). The operational plan contemplated the specific use of two flashbangs, but

vested every team member with the authority to use flashbangs. The search of

Ward’s apartment called for the kind of “split-second decision[s]” the Supreme

Court of Georgia has held are discretionary. E.g., Cameron v. Lang, 549 S.E.2d

341, 344 (2001) (holding that a high-speed police chase was discretionary).

Dukes’s argument that we should evaluate the relevant conduct more

narrowly fails. She argues that we should examine Deaton’s failure to perform a

visual inspection of the bedroom. Dukes argues that Deaton’s training to inspect an

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area before deploying a flashbang, makes this conduct ministerial. But her

argument runs counter to Georgia law. In Phillip v. Hanse, for example, the

Supreme Court of Georgia held that a decision of a police officer to engage in a

high-speed chase, not his several violations of a police manual, was the relevant

conduct for the purpose of official immunity. 637 S.E.2d 11, 12 (Ga. 2006). And

the Supreme Court of Georgia held that the decision to engage in a high-speed

chase is discretionary. Id. Like Hanse, Deaton’s decision to deploy a flashbang was

discretionary despite the violation of his training.

Deaton is entitled to official immunity under Georgia law. An officer is

entitled to official immunity for discretionary acts performed in his official

capacity unless he acted with actual malice or intent to injure. Bajjani, 647 S.E.2d

at 60. Actual malice means “a deliberate intention to do wrong, and does not

include implied malice, i.e., the reckless disregard for the rights or safety of others.

. . . A deliberate intention to do wrong . . . must be the intent to cause the harm

suffered by the plaintiffs.” Id. (citations omitted). Although Dukes asks us to infer

that Deaton acted with actual malice, no evidence in the record suggests that

Deaton “inten[ded] to cause the harm suffered by” Dukes. Id. She cites Deaton’s

training to inspect an area and argues that he likely knew people were in the room,

but these facts, at most, establish recklessness. We agree with the district court that

Deaton is entitled to official immunity under Georgia law.

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C. Branham is Entitled to Qualified Immunity.

Dukes makes two arguments that Branham is liable for Deaton’s conduct

under a theory of supervisory liability: that Branham failed to train his officers in

the proper use of flashbangs or, in the alternative, that Branham personally

participated in the deployment of the flashbang. The first argument fails, and

Dukes failed to preserve the second argument.

Dukes argues that Branham failed to train his subordinate officers in the use

of flashbangs and that this failure exposes him to supervisory liability for Deaton’s

violation of the Fourth Amendment, but we disagree. A supervisor cannot be liable

for the constitutional violation of his subordinate if the constitutional violation was

not then clearly established. See Keating v. City of Miami, 598 F.3d 753, 763 (11th

Cir. 2010) (explaining that supervising officers are only liable under section 1983

if subordinate officers violated clearly established law); Harper v. Lawrence Cty.,

592 F.3d 1227, 1235–36 (11th Cir. 2010) (“[W]e must analyze whether Plaintiff

properly stated a violation of [constitutional rights] against [the supervisor], and

whether those rights were clearly established.”). Branham is entitled to qualified

immunity because Deaton’s conduct was not a clearly established violation of the

Fourth Amendment.

The district court ruled, and we agree, that Dukes offered her alternative

argument too late in an improper attempt to amend her complaint. “A plaintiff may

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not amend her complaint through argument in a brief opposing summary

judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.

2004) (citation omitted). “At the summary judgment stage, the proper procedure

for plaintiffs to assert a new claim is to amend the complaint in accordance with

Fed. R. Civ. P. 15(a).” Id. In her amended complaint, Dukes alleged one theory of

supervisory liability: Branham’s failure to train his officers in the proper use of

flashbangs. Although the amended complaint alleged that Branham gave Deaton

“unbridled discretion to deploy [flashbangs],” nowhere did the complaint allege

that Branham deployed the flashbang. But in her brief in opposition to Branham’s

and Deaton’s motions for summary judgment Dukes asserted an alternative theory

of supervisory liability that “Branham personally participated in the alleged

unconstitutional conduct by Branham, himself, throwing a flashbang on to Ms.

Dukes.” Personal participation is a distinct ground for supervisory liability, cf.

Cottone v. Jenne, 326 F.3d 1352, 1360–61 (11th Cir. 2003) (articulating the

alternative theories of supervisory liability), which makes the assertion of it in a

brief in opposition to summary judgment improper. Gilmour, 382 F.3d at 1315. As

a result, we agree with the district court that Branham is entitled to qualified

immunity.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Deaton and Branham.

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