Dianne Troupe v. Sarasota County, Florida

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

FILED

No. 04-10550

U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

August 3, 2005

D. C. Docket No. 02-00053-CV-T-24-MAP

THOMAS K. KAHN

CLERK

DIANNE TROUPE, as Personal Representative,

for the Estate of Ricardo Robinson, deceased,

Plaintiff-Appellant-

Cross-Appellee,

versus

SARASOTA COUNTY, FLORIDA, a Florida

municipal corporation and a political

subdivision of the State of Florida,

GEOFFREY MONGE, individually and in his

official capacity as the former Sheriff

of Sarasota County, Florida, et al.,

Defendants-Appellees,

WILLIAM F. BALKWILL, in his official

capacity as the Sheriff of Sarasota

County, Florida,

KEVIN L. GOODING, individually and in his

official capacity as a Sarasota County,

Florida Deputy Sheriff,

TIMOTHY L. BAUER, individually and in his

official capacity as a Sarasota County,

Florida Deputy Sheriff,

Defendants-Appellees-

Cross-Appellants.

________________________

No. 04-10563

________________________

D. C. Docket No. 02-00054-CV-T-24-MAP

LEON WAITERS, JR.,

Plaintiff-Appellant-

Cross-Appellee,

versus

SARASOTA COUNTY, FLORIDA,

a Florida municipal corporation and a

political subdivision of the State of Florida,

GEOFFREY MONGE,

individually and in his official capacity as the

former Sheriff of Sarasota County, Florida,

SARASOTA COUNTY SHERIFF'S DEPARTMENT,

a political subdivision of the State of Florida,

Defendants-Appellees,

WILLIAM F. BALKWILL,

in his official capacity as the Sheriff of

Sarasota County, Florida,

KEVIN L. GOODING,

individually and in his official capacity as a

Sarasota County, Florida Deputy Sheriff,

TIMOTHY L. BAUER,

individually and in his official capacity as a

Sarasota County, Florida Deputy Sheriff,

Defendants-Appellees-

Cross-Appellants.

2

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(August 3, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges and LIMBAUGH *, District

Judge.

KRAVITCH, Circuit Judge:

In two cases, consolidated on appeal, Plaintiff-Appellant Dianne Troupe, as

personal representative for the estate of Ricardo Robinson, deceased, and Plaintiff-

Appellant, Leon Waiters, Jr. (collectively “the plaintiffs”) appeal the district

court’s grant of summary judgment in favor of Sarasota County, Sheriff Geoffrey

Monge, Sheriff William F. Balkwill, Deputy Kevin L. Gooding, and Deputy

Timothy L. Bauer (collectively “the defendants”) in their 42 U.S.C. § 1983 action

based on alleged excessive force by police officers.

I. Facts

On the morning of September 30, 1999, the Sarasota County Sheriff’s Office

Special Weapons and Tactics (“SWAT”) Team prepared to serve a felony drug

arrest warrant for Ryan Hart (“Hart”) and a search warrant for Hart’s residence

located at 2459 Bahia Vista, Sarasota, Florida (“the residence”). Defendant

*

Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of

Missouri, sitting by designation.

3

Captain Kevin L. Gooding (“Gooding”) was the leader of the SWAT Team.

Sixteen other SWAT members, including Defendant Timothy L. Bauer (“Bauer”),

reported for the scheduled briefing.

The Special Investigation Bureau (“SIB”) detectives working with the FBI

violent crimes task force went over information about Hart. The SWAT Team was

told that Hart was a 27-year old male with 40 previous arrests and 19 convictions.

They were informed that Hart was out on bond for attempted murder and was

known to run from the police and for his violent tendencies. Gooding then briefed

the Team on the tactical plan for executing the warrants and gave out individual

assignments. The Team, dressed in full SWAT gear, then moved to an area near

Hart’s home to prepare for the execution of the warrants. The surrounding streets

near the residence were blocked off by Sarasota County law enforcement

personnel.

A surveillance report issued while the team was en route indicated that Hart

and two other males–later identified as Robinson and Waiters–had exited the house

and were approaching a four door black Oldsmobile (“the Oldsmobile”) parked in

the driveway. Gooding and the driver of the SWAT Team van drove their vehicles

into positions blocking the Oldsmobile’s exit from the driveway. Hart and the two

men entered the car and locked the doors.

The SWAT Team, with their guns drawn, surrounded the Oldsmobile, and

4

yelled commands for Hart and the passengers to open the doors and surrender.

Gooding attempted to open the driver’s door and another Deputy attempted to open

the front passenger door, but both doors remained locked. The other officers

continued to yell commands such as “Sheriff’s department, hands up, hands up, get

out of the vehicle,” but none of the passengers complied. The Oldsmobile then

began to move, with Hart as the driver, revving the engine loudly and the car

jerking backwards and forwards.

When the incident occurred, Regina Weatherington (“Weatherington”), a

cable splicer for Verizon, was working up approximately 25 feet high on a

telephone pole located across the street. She had a clear view of the entire incident.

Weatherington’s testimony indicates that “the car would move fast–quickly, and

stop quickly, and move fast again. Stopping quickly.” She testified that the

uniformed “policemen had the car surrounded with their bodies” and that she was

surprised that no one got hit.1

Gooding claimed that he heard a change in the tone of the SWAT Team

members’ voices as the Oldsmobile moved, “like they were in extreme danger

where they were.” He stated that he “felt a very pressing need at that moment in

time to cause that driver to stop doing what he was doing with that car” because his

1

The plaintiffs contend that Hart did not hit any of the officers in the struggle. Corporal

Mike Kennedy claims that his foot was run over by the rear tire and Deputy Randall Butsch

claims that the car struck him in the left leg.

5

officers were in serious danger and “at risk for loss of life and limb.” Thus, he

raised his weapon, but did not shoot the driver because he felt he might harm other

SWAT Team members who were in the line of fire. Suddenly, the Oldsmobile

made a hard left such that the car was now facing the road. Gooding, believing

that he had an opportunity to “disable the car,” fired a single shot at a low angle,

aiming for the lower portion of the tire. The shot missed the tire and, apparently,

did not strike anyone or anything.

Soon thereafter, Bauer saw the car coming directly at him and believed it

would run right through him in order to leave the scene. He aimed his weapon and

fired two shots at the driver of the Oldsmobile and jumped out of the way as the

car swept past him. One bullet struck the driver’s door just above the keyhole.

The other bullet went through the driver’s side window and hit Hart in the back.2

Hart then accelerated the car out of the yard, made a left turn onto Bahia

Vista, and headed west for over 0.3 miles. The Oldsmobile maneuvered through

the intersection of Shade and Bahia Vista without slowing. It then approached an

officer’s unmarked vehicle, slowed down, made a sharp move to the right to avoid

oncoming traffic from the left, and went onto the grass and sidewalk, crashing into

a concrete wall. Hart was pronounced dead at the scene. Robinson, the front seat

passenger, was also pronounced dead at the scene. The backseat passenger,

Waiters, sustained blunt force trauma injuries to the skull, and was transported via

2

None of the shots hit either Robinson or Waiters.

6

helicopter to a hospital for emergency medical treatment.3

After the completion of internal investigations which exonerated the officers

from any wrongdoing, the plaintiffs filed suit in Florida State court. The

defendants subsequently removed the case to federal district court. Pursuant to

§ 1983, the plaintiffs alleged: Excessive Force by Defendants Gooding and Bauer

(Count I); Failure to Protect Decedent from Unconstitutional Harm by Defendants

Gooding and Bauer (Count II); Supervisory Liability by Defendant Gooding

(Count III); and Municipal Liability by Defendant Sarasota County and Defendant

Sheriff Balkwill (Count IV).4 Each defendant moved for summary judgment. The

district court granted summary judgment on all counts.

In this appeal, we address whether the district court erred in finding that (1)

the defendants were not the proximate cause of the plaintiffs’ injuries; (2) the

defendants’ use of deadly force was reasonable under § 1983; and (3) the

defendants were entitled to qualified immunity.5

II. Discussion

3

Waiters remained in a coma for two and a half months following the incident.

4

The plaintiffs also asserted several state law claims. Because the district court dismissed

plaintiffs’ federal law claims in their entirety, the district court declined to exercise supplemental

jurisdiction over plaintiffs’ state law claims. The state law claims were remanded to state court

and thus are not at issue on appeal.

5

We affirm, without discussion, the judgment of the district court with regard to the

remaining issues on appeal. See 11th Circuit Rule 36-1. Thus, we conclude that (1) Gooding was

not liable under § 1983 for supervisor liability; and (2) the Sheriff was not liable under § 1983

for municipal liability.

7

A. Standard of Review

We review the district court’s grant of summary judgment de novo applying

the same standard as the district court. Korman v. HBC Fla., Inc., 182 F.3d 1291,

1293 (11th Cir. 1999). We draw all inferences in favor of the non moving party.

Id. See also Robinson v. Arrugueta, No. 04-10856 *2 (11th Cir. 2005).

B. The Defendants Were Not the “Proximate Cause” of the Plaintiffs’ Injuries.

A § 1983 claim requires proof of an affirmative causal connection between

the defendant’s acts or omissions and the alleged constitutional deprivation. Zatler

v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986). Recovery of damages is

limited to those injuries proved to be caused by the defendants. See Whiting v.

Traylor, 85 F.3d 581, 586 n.10 (11th Cir. 1996) (holding in a malicious-

prosecution case against arresting officers that the chain of causation could be

broken by the prosecutor). The district court concluded that Bauer and Gooding

were not the proximate cause of the plaintiffs’ injuries because it determined that

Hart’s continued flight after being shot by Bauer constituted an independent

“intervening” cause.

For the following reasons, we conclude that the district court did not err in

making this determination. First, Gooding fired only one shot and it completely

missed striking the car or any of its passengers. Thus, Gooding’s single-missed

shot was not the proximate cause of any injury to Robinson and Waiters. Hart’s

decision to continue his flight and his continued exercise of control over the

8

Oldsmobile after he was shot,6 “was the intervening cause” of Robinson and

Waiters’ injuries. The fact that Hart ultimately died from the gunshot wound fired

by Bauer does not erase the acts and decisions that Hart made after the shooting

and up to the time of his death. “The causal relation does not exist when the

continuum between Defendant’s action and the ultimate harm is occupied by the

conduct of deliberative and autonomous decision-makers.” Dixon v. Burke

County, 303 F.3d 1271, 1275 (11 th Cir. 2002). Hart began implementation of his

escape before deadly force was applied. His reckless driving preceded any shots,

continued as shots were taken, and continued after the shots were fired. Thus,

Hart’s determination to flee was not a reaction to the force used by Bauer or the

other Officers. Instead, Hart’s behavior prior to the shots establishes that he had

no intention to drive safely regardless of whether shots were fired. Thus, the

district court did not err in concluding that it was Hart’s reckless driving that

6

Specifically, Gooding points to the following evidence for support that Hart exerted

control over the Oldsmobile after he was shot:

(1) Hart drove the vehicle out of the yard onto Bahia Vista Street overshooting the

westbound lane, going into the eastbound lane, then quickly turning back into the westbound

lane; (2) As Hart drove west on Bahia Vista he rapidly accelerated his car to a speed of 60

to 70 MPH; (3) As the Oldsmobile approached the slower traveling unmarked car of

Detective Wallace also in the westbound lane of Bahia Vista, the brake lights of the

Oldsmobile came on and the Oldsmobile slowed down; (4) The Oldsmobile initially

attempted to go around Detective Wallace’s car on the left but was blocked by eastbound

traffic. The Oldsmobile then made a sharp turn to the right back into the westbound lane;

(5) The Oldsmobile then moved to the right of Wallace’s vehicle going up on the sidewalk

and hitting a concrete wall and then a concrete pole. Just prior to impact, Wallace saw the

car’s wheels turn “Like somebody was trying to get back into Bahia Vista” and Deputy Shaw

observed the car make a sudden movement to the left and the vehicle’s brake lights come

on just before impact.

9

caused the death and injury of the plaintiffs and not Bauer’s decision to use deadly

force.

C. The District Court Erred in Finding A Fourth Amendment Seizure of Robinson

and Waiters.

The plaintiffs allege that Gooding and Bauer used excessive force in

violation of their Fourth Amendment right to be free from unreasonable searches

and seizures. To assert a Fourth Amendment claim based on the use of excessive

force, the plaintiffs must allege (1) that a seizure occurred and (2) that the force

used to effect the seizure was unreasonable. See Evans v. Hightower, 117 F.3d

1318, 1320 (11th Cir. 1997). The district court found that a Fourth Amendment

seizure of Robinson and Waiters occurred when “Gooding fired at the Oldsmobile

and Bauer fired at Hart in an attempt to stop the car.” We disagree.

“[A] Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual’s freedom of movement . . .

nor even whenever there is a governmentally caused and governmentally desired

termination of an individual’s freedom of movement . . . but only when there is a

governmental termination of freedom of movement through means intentionally

applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 1381,

103 L.Ed.2d 628 (1989) (emphasis in original). “It is intervention directed at a

specific individual that furnishes the basis for a Fourth Amendment claim.”

10

Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990).

Force regardless of the form directed to a driver of a vehicle–particularly

one attempting to flee–does not give rise to a due process deprivation claim unless

it was exercised with “a purpose to cause harm” unrelated to the legitimate object

of arrest. Id. The plaintiffs concede that shots were fired at the driver as he “began

to drive parallel to the residence proceeding out of the circular driveway” in an

“attempt to stop [the car] from leaving the residence.” The plaintiffs do not allege

that Gooding or Bauer had the intent to cause harm unrelated to the arrest.

Furthermore, Gooding’s attempt to seize Hart by firing at the tire of the

Oldsmobile was not a seizure. “[N]either usage nor common-law tradition makes

an attempted seizure a seizure.” California v. Hodari D., 499 U.S. 621, 626 n.2,

111 S.Ct. 1547, 1551 n.2, 113 L.Ed.2d 690 (1991) (emphasis in original).

Additionally, stopping a vehicle’s driver does not constitute a seizure of a

passenger. See County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708,

1715, 140 L.Ed.2d 1043 (1998), citing Brower, 489 U.S. at 596-97. Thus, when

Bauer shot Hart that did not constitute a seizure of the passengers. Therefore, the

district court erred when it found that Gooding and Bauer seized the occupants of

the vehicle.

Nonetheless, we note that although the district court found that a seizure

occurred it also found that the force used to effect the seizure was reasonable.

11

Thus, though we disagree that a seizure occurred, we agree with the district court’s

final assessment that the plaintiffs did not establish an excessive force claim.

D. The Defendants were Entitled to Qualified Immunity.

Even if Gooding and Bauer had seized Robinson and Waiters with

unreasonable use of force, the district court correctly found that they were entitled

to qualified immunity. In Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151,

2156, 150 L.Ed.2d 272 (2001), the Supreme Court set out a two-step analysis to

determine whether an officer is eligible for qualified immunity. The first step is to

determine whether the facts “[t]aken in the light most favorable to the party

asserting the injury, . . . show the officer’s conduct violated a constitutional

right[.]” Id. If the conduct did not violate a constitutional right, the inquiry ends

there. If the conduct violated a constitutional right, a court must move on to the

second step and determine “whether the right was clearly established.” Id. See also

Robinson, No. 04-10856 *2.

The Fourth Amendment protects individuals from “unreasonable” seizures.

As we recently explained in Robinson,

Deadly force is “reasonable” for the purposes of the Fourth Amendment

when an officer “(1) ‘has probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer or to others’ or ‘that he

has committed a crime involving the infliction or threatened infliction of

serious physical harm’; (2) reasonably believes that the use of deadly force

was necessary to prevent escape; and (3) has given some warning about the

possible use of deadly force; if feasible.” Vaughan v. Cox, 343 F.3d 1323,

12

1329-30 (11th Cir. 2003)[7] (quoting Tennessee v. Garner, 471 U.S 1, 105

S.Ct. 1694, 85 L.Ed.2d 1 (1985)); see also Crosby v. Monroe County, 394

F.3d 1328, 1333 (11th Cir. 2004) (“the ‘reasonableness’ inquiry in an

excessive force case is an objective one: the question is whether the officer’s

actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting him, without regard to his underlying intent or motivation.”).

Robinson, No. 04-10856 *2.

The district court determined that the force Gooding and Bauer used under

the circumstances was reasonable. The court found that if Hart’s escape had been

successful, his path of flight “could have posed” a threat of death or serious injury

to the public or to other members of the SWAT Team. The plaintiffs argue that

the mere possibility that others may be harmed is not enough to justify the use of

deadly force, asserting that there must be an immediate and justifiable threat of

harm. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104

L.Ed.2d 443 (1989). The plaintiffs contend that numerous witnesses testified that

no law enforcement officer or civilian was in the path of the Oldsmobile when the

shots were fired.

Although the facts must be taken in the light most favorable to the plaintiffs,

the determination of reasonableness must be made from the perspective of the

7

In Vaughan, this Court held that a reasonable jury could conclude that an officer used

excessive force against a passenger in a moving vehicle when there was evidence that the driver

led police on a high-speed chase at speeds approaching 90 MPH and when there was a factual

question of whether the suspect made any motion in the direction of hitting the officer or putting

other lives in danger.

13

officer:

The “reasonableness” of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight . . . The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-

second judgments–in circumstances that are tense, uncertain, and rapidly

evolving–about the amount of force that is necessary in a particular

situation.

Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir. 1994), quoting Graham,

490 U.S. at 396-97.

Here, the SWAT Team surrounded the Oldsmobile, and Hart was disobeying

their clear orders to put his hands up and surrender. The Oldsmobile suddenly

moved forward and backward and the Officers had to make split-second decisions

of whether they could escape before anyone suffered serious injury. In their

briefing earlier, they were told that Hart was dangerous and had tried to escape

from police before and would likely be carrying a weapon. Additionally, the three

officers surrounding Hart’s car, and a fourth in the yard all separately concluded

that deadly force was needed and appropriate to stop Hart, but they did not shoot

because they did not have a clear shot and were worried about a cross-fire

situation. Bauer was directly in Hart’s path as the Oldsmobile accelerated toward

him. He had only 3-5 seconds to assess the situation before shooting. Even if in

hindsight the facts show that the SWAT Team could have escaped unharmed, a

reasonable officer could have perceived that Hart posed a threat of serious physical

14

harm.

In Brosseau v. Haugen, – U.S. –, 125 S.Ct. 596, 600, 160 L.Ed.2d 583

(2004), the Supreme Court held that it was objectively reasonable for Officer

Brosseau to use deadly force against a suspect in an attempt to prevent the

suspect’s escape and potential harm to others. In Brosseau, like the present case,

the Officer fired through the driver’s side window and the bullet entered the

driver’s back. 125 S.Ct. at 598. Here, Gooding and Bauer perceived that Hart was

attempting to escape and could potentially endanger more lives and thus, Bauer

shot through the driver’s side window and hit Hart in the back. Because the

Brosseau Court held that it is constitutionally reasonable for an officer to use

deadly force when a suspect is threatening to escape and cause harm to others, and

because of the similarities of these two cases,8 the district court did not err in

finding that the officers’ conduct did not violate a constitutional right and that

Gooding and Bauer were entitled to qualified immunity.9 Finally, because our

8

In Brosseau, citizens and other officers were in the immediate area and were at a high

risk of harm if the suspect had escaped. Id. In the present case, the streets were blocked, which

created less possibility of harm to innocent citizens. Nonetheless, the Oldsmobile was

surrounded by Officers who were at risk and the car did end up breaking out of the driveway and

getting onto a main road. Bauer was aware at the time of the shooting that other surveillance

officers were only a short distance away. He also knew that citizens could be on the main street

and could be harmed. Thus, Bauer believed there was an immediate risk of harm to the general

public.

9

We note that this case is distinguishable from Harris v. Coweta County, 406 F.3d 1307

(11th Cir. 2005). Under the first prong of the Saucier analysis, the Harris panel concluded that

Harris was seized by Scott, a ticketing officer, when Scott rammed his vehicle into Harris’s

15

inquiry ends at the first step, we need not determine whether the law was clearly

established at the time of the incident. Saucier, 533 U.S. at 201.

III. CONCLUSION

For the reasons stated above, we conclude that the district court did not err in

granting summary judgment in favor of the defendants.

AFFIRMED.

vehicle and that the use of deadly force was unreasonable. Id. at 1315-17. The Court stressed

that “Scott did not have probable cause to believe that Harris had committed a crime involving

the infliction or threatened infliction of serious physical harm, nor did Harris, prior to the chase

pose an imminent threat of serious physical harm to Scott or others.” Id. at 1316. Harris’s only

crime was speeding. Id. In contrast, Hart, in the case sub judice, had 40 previous arrests and 19

convictions. The officers were informed that Hart was out on bond for attempted murder and

was known to run from the police and for his violent tendencies. Hart bumped his car into one

officer before the shooting and ran over the foot of another. Thus, these cases are

distinguishable.

16