McCullough Ex Rel. McCullough v. Antolini

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 26, 2009

No. 08-10176

THOMAS K. KAHN

________________________

CLERK

D. C. Docket No. 06-00813-CV-T-30-TBM

PEARLIE MCCULLOUGH,

as grandmother and personal representative of the

estate of her grandson, Marquell McCullough, deceased,

Plaintiff-Appellee,

versus

DAVID ANTOLINI,

Deputy Sheriff, in his individual capacity,

NELSON DELEON,

Deputy Sheriff, in his individual capacity,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(February 26, 2009)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

In this civil rights case, Pinellas County sheriff’s deputies David Antolini

and Nelson DeLeon appeal from the district court’s denial of their motion for

summary judgment on the basis of qualified immunity. The sheriff’s deputies used

deadly force against Marquell McCullough in a rapidly unfolding scenario early in

the morning hours of May 2, 2004. The facts, taken in the light most favorable to

McCullough, established that he disobeyed a police command and refused to pull

his truck over, led the police on a high speed chase, and then after finally pulling

over, refused to show his hands or respond to the deputy sheriff’s orders and drove

his truck in the direction of a sheriff’s deputy standing nearby.

After thorough review, we conclude that the sheriff’s deputies are entitled to

qualified immunity; their actions did not constitute excessive force under the

Fourth Amendment. Accordingly, we reverse the denial of summary judgment

and remand for further proceedings consistent with this opinion.

I.

In conducting de novo review of the district court’s resolution of a summary

judgment motion based on qualified immunity, we resolve all issues of material

fact in favor of the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.

2002). As we noted in Lee,

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we approach the facts from the plaintiff's perspective

because “[t]he issues appealed here concern not which

facts the parties might be able to prove, but, rather, whether

or not certain given facts showed a violation of clearly

established law.” Sheth v. Webster, 145 F.3d 1231, 1236

(11th Cir.1998). As this Court has repeatedly stressed, the

“facts, as accepted at the summary judgment stage of the

proceedings, may not be the actual facts of the case.

Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3

(11th Cir. 2000). Nevertheless, for summary judgment

purposes, our analysis must begin with a description of the

facts in the light most favorable to the plaintiff. See Skrtich

v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).

284 F.3d at 1190. Because the plaintiff in this action is deceased and there is no

complete witness testimony, we necessarily rely on the facts presented by the

defendants, but where there is a discrepancy between the statements of the

defendants, we have resolved the dispute by using only those statements most

favorable to the plaintiff. See generally Skrtich, 280 F.3d at 1299 (“On review of

a district court's denial of summary judgment, the Court considers the pleadings,

depositions, affidavits, answers to interrogatories and admissions together with the

affidavits if any... in the light most favorable to the non-moving party.”).

This tragic story begins at approximately 1:00 a.m. on May 2, 2004, when

Pinellas County sheriff’s deputy John Syers, Jr. received a report about individuals

dealing narcotics at the La Quinta Inn located on 34th Street North in Pinellas

County. Syers pulled his unmarked police car into the La Quinta Inn parking lot

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and observed what he believed to be a drug transaction between two individuals.

He pursued and stopped one of the individuals, Donald Mohyla, and then returned

to the parking lot. When he re-entered the parking lot, he saw the man whom he

believed to be the other individual involved in the drug transaction, Marquell

McCullough. As Syers approached McCullough, McCullough got into his white

pickup truck and drove out of the parking lot. Syers observed that the tint on the

truck’s windows was too dark, in violation of Florida law.

He radioed the vehicle’s tag number as well as his suspicion of drug activity

to deputies Antolini and DeLeon and told them they had probable cause to conduct

a traffic stop for excessive window tint. Antolini followed the truck, and pulled

his police car behind it as it stopped at a traffic light at the intersection of 38th

Ave. North and 34th St. North. DeLeon pulled his police cruiser behind the police

cruiser driven by Antolini and the truck driven by McCullough. When the light

turned green, McCullough accelerated his truck heading south. Both Antolini and

DeLeon then activated their emergency lights and sirens and followed the truck.

The truck did not pull over, instead continuing to accelerate to approximately sixty

miles per hour. After the truck went through the intersection of 22nd Ave. North,

it pulled into a shopping center parking lot. Antolini followed the truck, and

DeLeon in turn followed but was further behind at this point.

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The ground was wet from a previous rain, and shortly after McCullough

drove into the parking lot, his truck fishtailed and spun around up to 270 degrees.

According to testimony from a taxi cab driver driving near the scene, Thomas

Bowen,1 “it looked like [McCullough] tried to make a U-Turn and leave the

parking lot.” According to deputy Antolini, McCullough’s truck then came to a

stop at approximately a forty-five degree angle to, and a few feet away from

Antolini’s police car which then stopped. Antolini exited his vehicle, drew his

firearm and walked to the front of his police car. Antolini pointed his firearm at

the driver of the truck and yelled at McCullough, directing him to show his hands.

In his affidavit in support of summary judgment, Antolini avers “I was able to

make eye contact with the driver of the truck.” The driver did not show his hands

or respond to the officer’s command.

While this was happening, deputy DeLeon drove into the parking lot.

According to his statement to investigators, “deputy DeLeon was coming in a little

fast as the parking lot was wet from a recent rain.” According to witness Bowen,

it looked like DeLeon (along with Antolini) were trying to box McCullough in.

DeLeon was passing the right side of Antolini’s car, applied his brakes, skidded

past the passenger side of Antolini’s car, and struck McCullough’s truck. The

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Bowen was heading northbound on 34th Street at the time. He later slowed down and

came to rest on the edge of the parking lot.

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force of the collision jammed the driver’s side door of deputy DeLeon’s cruiser

shut, and left the cruiser and the truck inches apart.

DeLeon said that he yelled to Antolini that he was “stuck,” and Antolini

reported hearing DeLeon yell something. Notably, at this point, both Antolini and

DeLeon heard McCullough’s truck’s engine revving, and DeLeon thought he

heard its tires spinning. DeLeon drew his firearm and fired one shot through his

closed driver’s-side window at the truck’s windshield. Antolini then fired three

shots towards the truck’s windshield. Antolini was unable to determine whether

these shots struck McCullough.

At this point, the truck went into reverse, and spun its tires. Antolini said he

saw the truck back away from DeLeon’s cruiser and its front wheels swing in his

direction. He then fired another round at the truck’s windshield and jumped on the

hood of his cruiser in order to avoid being struck by the moving vehicle.

McCullough drove the truck towards deputy Antolini and it struck Antolini’s

police cruiser in the front passenger corner or front right bumper. The damage to

Antolini’s car was limited to some paint transfer from the white truck to the right

front bumper of Antolini’s cruiser, suggesting that the truck was moving slowly.

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The truck then kept moving westward, continuing to “mov[e] out of the

boxed-in situation that the officers had him in”2 and away from Antolini and

DeLeon. According to DeLeon, the truck was then moving at a slow speed across

the parking lot toward the taxi cab now parked at the parking lot’s exit, and

Antolini and DeLeon were able to move alongside the truck and stay at least even

with the passenger column of the truck. As the truck rolled away, Antolini and

DeLeon followed the truck on foot, both along the passenger side, and each fired

more rounds at the passenger side of the vehicle. DeLeon said that he fired more

rounds because he heard gun shots and did not know who was firing them.

Antolini told investigators that he remembered telling DeLeon to “watch your

crossfire,” but said he was not sure where DeLeon was standing at the time.

The truck finally rolled to a stop when it entered a shallow ditch at the edge

of the parking lot, before the sidewalk. Antolini and DeLeon reloaded and

approached the front of the truck with weapons pointed at the passenger side.

Antolini called to report the incident, and McCullough was pronounced dead at

2

This observation comes from Bowen, who at that point purposefully stopped his cab at

the exit of the parking lot so that “if the truck was coming out, it would probably strike my

vehicle.” Bowen, a former police officer, stated that he did this to help the police.

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the scene by arriving paramedics. The entire incident took place over a very short

period of time.3

According to the medical examiner’s report, McCullough died of multiple

gunshot wounds. Nine bullets struck McCullough in total, with a shot traveling

back to front and striking him in the head after ricocheting off the seatbelt being

the fatal shot. A Pinellas County Sheriff’s Office detective assigned to the case

further found that the deputies fired a total of fifteen shots at McCullough;

Antolini shot nine times and DeLeon six. The detective also determined that all of

the shells recovered at the scene were from the deputies’ guns and that

McCullough was unarmed.

On May 2, 2006, appellee Pearlie McCullough, on behalf of the estate of her

grandson Marquell Deontae McCullough, filed this two-count § 1983 civil rights

complaint against deputies Antolini and DeLeon, and the Pinellas County Sheriff’s

Office in the United States District Court for the Middle District of Florida. The

claim against Antolini and DeLeon in their individual capacities alleged among

3

Indeed, both parties agreed at oral argument that the incident, from the time of the initial

collision with DeLeon's cruiser until McCullough's truck rolled to its ultimate stop near the exit,

took place in approximately twenty seconds.

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other things that the deputies seized McCullough with excessive (and deadly)

force in violation of the Fourth Amendment.4

On September 27, 2007, Antolini and DeLeon moved for summary

judgment on the ground of qualified immunity. Soon thereafter, the district court

denied the motion concluding that the officers were not entitled to qualified

immunity. This timely interlocutory appeal followed.

II.

The only issue before us is whether the sheriff’s deputies are entitled to

qualified immunity on the Fourth Amendment claim that they wrongfully used

deadly force. We review the district court's disposition of a summary judgment

motion based on qualified immunity de novo. Lee, 284 F.3d at 1190. Summary

judgment is appropriate if “the evidence before the court shows that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995) (internal quotations omitted). We add that the mere existence of a factual

dispute does not preclude summary judgment for the defendants on the basis of

qualified immunity. McDaniel v. Woodard, 886 F.2d 311, 313 (11th Cir. 1989).

4

Count Two, which is not now before us, sued Sheriff Jim Coats in his official and

personal capacities, alleging that the deputies committed the tort of wrongful death under Florida

law.

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In order to overcome a summary judgment motion on the basis of qualified

immunity, the facts in dispute must raise a genuine issue of fact material to the

determination of the underlying issue -- here whether police officers used

excessive force. See, e.g., Lee, 284 F.3d at 1190; Thornton v. City of Macon, 132

F.3d 1395, 1400 (11th Cir. 1998).

As we have often observed, “[q]ualified immunity offers complete

protection for government officials sued in their individual capacities as long as

their conduct violates no clearly established statutory or constitutional rights of

which a reasonable person would have known.” Lee, 284 F.3d at 1193-94 (internal

quotations omitted). The purpose of qualified immunity is to allow officials to

carry out discretionary duties without the chilling fear of personal liability or

harrassive litigation, Anderson v. Creighton, 483 U.S. 635, 638-39 (1987),

“protecting from suit all but the plainly incompetent or one who is knowingly

violating the federal law.” Lee, 284 F.3d at 1194 (internal citation omitted). In

order to receive qualified immunity, an official must first establish that “he was

acting within the scope of his discretionary authority when the allegedly wrongful

acts occurred.” Id. (internal quotations omitted). If the official was acting within

the scope of his discretionary authority -- and it is undisputed that officers

Antolini and DeLeon were acting within their discretionary authority -- the burden

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then shifts to the plaintiff to show that the grant of qualified immunity is

inappropriate. Id.

The Supreme Court recently reaffirmed the long-established standard for

qualified immunity in Pearson v. Callahan, 555 U.S. _, No. 07-751 (Jan. 21,

2009). “Qualified immunity balances two important interests, the need to hold

public officials accountable when they exercise power irresponsibly and the need

to shield officers from harassment, distraction, and liability when they perform

their duties reasonably.” See id., slip op. at 6. Under Pearson, we are obliged to

grant qualified immunity unless the plaintiff can demonstrate: first, that the facts

viewed in the light most favorable to the plaintiff establish a constitutional

violation by the officers, and, second, that it was clearly established at the time of

the incident that the actions of the defendant were unconstitutional. See id., slip

op. at 4-5, 10. This inquiry “must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Lee, 284 F.3d at 1194 (internal

citation omitted). Moreover, under Pearson, the federal courts are no longer

required to conduct this qualified immunity analysis in the order articulated by

Saucier v. Katz, 533 U.S. 194 (2001); rather, we are “permitted to exercise [our]

sound discretion” in deciding which prong of this inquiry to address first. Slip op.

at 10.

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In this case, we begin and end our analysis with whether the law

enforcement officers violated McCullough’s Fourth Amendment rights. We hold

that they did not.

The complaint alleges, among other things, that deputies Antolini and

DeLeon used excessive force in violation of the Fourth Amendment when they

shot McCullough in his vehicle. A claim of excessive force is “properly analyzed

under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v.

Connor, 490 U.S. 386, 388 (1989); Long v. Slaton, 508 F.3d 576, 580 (11th Cir.

2007). In determining the reasonableness of the force applied, we look at the fact

pattern from the perspective of a reasonable officer on the scene with knowledge

of the attendant circumstances and facts, and balance the risk of bodily harm to the

suspect against the gravity of the threat the officer sought to eliminate. Scott v.

Harris, 550 U.S. 372, 127 S. Ct. 1769, 1778 (2007). “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.” Graham, 490 U.S. at

396. And, “[t]he 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.” Graham, 490 U.S. at 396-97.

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This Court has explained the application of the constitutional

reasonableness test in practice. In Lee, we wrote:

The Fourth Amendment's freedom from unreasonable

searches and seizures encompasses the plain right to be

free from the use of excessive force in the course of an

arrest. In order to determine whether the amount of force

used by a police officer was proper, a court must ask

“whether a reasonable officer would believe that this level

of force is necessary in the situation at hand.” The

Supreme Court has held that “[d]etermining whether the

force used to effect a particular seizure is ‘reasonable’

under the Fourth Amendment requires a careful balancing

of ‘the nature and quality of the intrusion on the

individual's Fourth Amendment interests' against the

countervailing governmental interests at stake.”

Moreover, “Fourth Amendment jurisprudence has long

recognized that the right to make an arrest or investigatory

stop necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.”

Lee, 284 F.3d at 1197 (internal citations omitted). In Lee we reviewed an

excessive force claim against an officer and we stated that to determine whether a

constitutional violation occurred, we measure the level of force used against 1) the

severity of the crime, 2) the immediacy of the threat posed by the suspect, and 3)

whether the suspect sought to evade or resist arrest. Id. at 1197-98 (citing

Graham, 490 U.S. at 397).

In Vaughan v. Cox, 343 F.3d 1323 (11th. Cir. 2003), we reviewed another

excessive force claim and we recited some of the conditions attendant to the

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lawful use of deadly force. We observed that a police officer may use deadly

force where the 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, 343 F.3d at 1329-30 (quoting Tennessee v. Garner, 471 U.S. 1, 11-12

(1985)).

The constitutional test for excessive force is necessarily fact specific.

“Because ‘the test of reasonableness under the Fourth Amendment is not capable

of precise definition or mechanical application,’ we must ‘slosh our way through

the fact bound morass of reasonableness.’” Long, 508 F.3d at 580. We have had

occasion to review many excessive force claims against officers in the context of

qualified immunity determinations where the decedent was driving an automobile

at the time deadly force was used. In some of the cases, we have found that the

officers were not entitled to qualified immunity. In others, we have awarded

qualified immunity. We have, however, consistently upheld an officer’s use of

force and granted qualified immunity in cases where the decedent used or

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threatened to use his car as a weapon to endanger officers or civilians immediately

preceding the officer’s use of deadly force.

In Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002), for example, a

panel of this Court upheld the officer’s use of deadly force against a fleeing

suspect who, a few seconds before the shooting, had been driving hazardously and

had swerved his car at police officers. Id. at 1277, 1282. We found the use of

force constitutional because “[the decedent] would have appeared to reasonable

police officers to have been gravely dangerous” at the time of the shooting, based

on his aggressive and reckless driving as well as his failure to heed police

warning. Id. at 1292.

In Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005), a panel of this

Court, relying on similar reasoning, granted qualified immunity to an officer who

used deadly force when a suspect slowly -- at one or two miles per hour -- drove a

vehicle forward toward the officer who was standing between the suspect’s

vehicle and a parked car. We said that the use of deadly force was reasonable

because “[e]ven if in hindsight the facts show that Arrugueta perhaps could have

escaped unharmed . . . a reasonable officer could have perceived that [decedent]

was using the Escort as a deadly weapon . . . [and thus] Arrugueta had probable

cause to believe that [he] posed a threat of serious physical harm.” Id. at 1256.

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Finally, in Long v. Slaton, 508 F.3d 576 (2007), a panel of this Court found

no excessive force violation and granted qualified immunity to officers who used

deadly force against a mentally unstable person who had avoided police capture,

stole a marked police cruiser, and was attempting to drive the police cruiser

toward the road. Id. at 578-79. We held that “[a]lthough at the point of the

shooting Long had not yet used the police cruiser as a deadly weapon, Long’s

unstable frame of mind, energetic evasion of the deputy’s physical control, Long’s

criminal act of stealing a police cruiser, and Long’s starting to drive – even after

being warned of deadly force – to a public road gave the deputy reason to believe

Long was dangerous.” Id. at 581-82 (internal citation omitted).

The sad case now before us is similar in key respects to these cases. This

case unfolded very rapidly and under less than ideal conditions. The facts, viewed

in the light most favorable to plaintiff, plainly show at least this much:

1. Deputy Syers transmitted information to deputies

Antolini and DeLeon about McCullough’s suspected

participation in a drug transaction;

2. McCullough failed to pull his truck over when

deputies Antolini and DeLeon turned on their

emergency lights and sirens at approximately 1:30

a.m;

3. McCullough instead accelerated to approximately

sixty miles per hour not long after it had rained and

cut across two lanes of traffic;

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4. McCullough then abruptly pulled his truck into a

parking lot, and his high speed and the wet

conditions caused his vehicle to fishtail so that he

ended up only a few feet away from Antolini’s

police car;

5. Antolini pointed his firearm at McCullough and

asked him to show his hands. McCullough failed to

do so or, indeed, to reply in any manner;

6. After DeLeon’s cruiser collided with McCullough’s

truck, and while DeLeon was pinned inside just

inches from McCullough, McCullough revved his

engine and DeLeon heard McCullough spin his

wheels;

7. Moments later, McCullough backed up his truck,

turned his wheels toward Antolini and drove the

truck towards Antolini’s cruiser. Antolini had to

quickly jump onto the hood of his police cruiser in

order to avoid being hit by McCullough’s truck, and

the truck struck Antolini’s car at the front passenger

corner or front right bumper;

8. McCullough then drove away toward a parked taxi

cab and the exit of the parking lot leading to the

street;

9. The entire incident, from the time of the initial

collision with DeLeon’s cruiser until McCullough’s

truck finally rolled to its ultimate stop near the exit

of the parking lot, took place over a very short

period of time.

In short, the sheriff’s deputies used deadly force in a split-second situation

where a suspect late at night refused to pull over, engaged in a high-speed chase,

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and then, after pulling over, repeatedly refused to show his hands or respond to

officers, revved his engine, and then drove his truck toward the deputy standing

nearby in a parking lot.

As in Pace, Robinson, and Long, McCullough used his vehicle in a

dangerous and aggressive manner which provided the officers with probable cause

to believe that McCullough, while driving his truck, posed a threat of serious

physical harm or death to the officers, or other passersby, especially in light of the

speed with which the incident unfolded. Specifically, McCullough's initial

attempts to evade police, his failure to heed police warning of the potential use of

deadly force, his later attempt to drive a truck towards an officer on foot, and his

still later apparent attempt to drive away from the officers toward the exit of the

parking lot provided the officers with sufficient reason to believe the use of deadly

force was necessary.

Thus, on the particular facts of this case, especially in light of the deference

we afford the split-second police judgments in the field and our prior precedent in

this difficult area, we are constrained to conclude that deputies Antolini and

DeLeon had probable cause to believe that the suspect posed a direct threat of

serious physical harm or death, gave an adequate warning under the

circumstances, and had powerful reason to believe that the use of deadly force was

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necessary to prevent escape. Simply put, the force used against McCullough was

not excessive under the Fourth Amendment and the officers were entitled to

qualified immunity. Because we can discern no constitutional violation, we need

not address whether the constitutional right at issue had been clearly established

when the incident arose.

III.

Accordingly, we reverse the district court’s denial of the defendants’ motion

for summary judgment and remand for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

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