Harris v. Harvey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TIDERA HARRIS, )

)

Plaintiff, )

)

v. ) CASE NO. 2:21-CV-799-WKW

) [WO]

THE CITY OF MONTGOMERY, a )

municipal corporation, and )

GREGORY HARVEY, in his )

individual capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

On October 17, 2021, Montgomery Police Officers Gregory Harvey and Rene

Helton were dispatched to the home of Chimeka Minefield—Tidera Harris’s fiancé.

Per dispatch, Officer Harvey was informed that a domestic violence incident was

happening at Ms. Minefield’s home, that Mr. Harris was there, and that there

potentially were warrants out for Mr. Harris’s arrest.

Once there, Officer Harvey repeatedly asked Mr. Harris to step outside so that

he could ask him some questions about what was going on. Instead of following

Officer Harvey’s request, Mr. Harris walked through the house twice, stooping down

and rummaging through different belongings. Finally, Mr. Harris complied with

Officer Harvey’s request and stepped outside.

Once outside, Mr. Harris told Officer Harvey that there had been a

misunderstanding between him and Ms. Minefield about his housing situation but

that no physical violence had occurred. After giving Officer Harvey his name and

birthdate, Mr. Harris lifted his cellphone to his ear and took a call. He then started

walking toward his Dodge Charger, which was parked in the driveway. As he

rounded the back of the car, he ran toward the driver’s side door. In these few

seconds, Officer Harvey yelled “Hey, hey, no. Hey, dawg.”1 Mr. Harris opened the

driver’s side door and began to sit down in the driver’s seat. And at that moment

Officer Harvey shot three times, hitting Mr. Harris once in the back and once in the

shoulder.

Mr. Harris sued Officer Harvey and the City of Montgomery claiming (1) that

Officer Harvey committed an unlawful assault and battery under state law, (2) that

Officer Harvey violated his Fourth Amendment rights, under 42 U.S.C. § 1983, to

be free from excessive force, (3) that the City of Montgomery was liable under

Monell,2 and (4) that Officer Harvey was negligent and/or wanton under state law.

Defendants moved for summary judgment (Doc. # 52); Plaintiff responded (Doc. #

1 “Dawg” is a slang term for “man, buddy, [or] dude” which is “used especially as a familiar

form of address.” Merriam-Webster, Dawg, https://www.merriamwebster.com/dictionary/dawg

(last visited May 10, 2023). The following is an example of the term’s usage: “What’s up, dawg?”

Cambridge Dictionary, Dawg, https://dictionary.cambridge.org/us/dictionary/english/dawg (last

visited May 10, 2023).

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

61); and Defendants replied (Doc. # 66). For the reasons discussed below,

Defendants’ motion for summary judgment will be granted in part and denied in

part.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,

1367. Personal jurisdiction and venue are uncontested.3

II. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must

demonstrate that “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). The court views

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

3 Plaintiff’s Amended Complaint alleges that venue is proper in the Montgomery County

Circuit Court (Doc. # 32 at 3), but this appears to be a typographical error—perhaps a failure to

edit the original complaint filed in state court—since, as Defendants rightly state (Doc. # 33 at 2),

the case was properly removed from the Montgomery County Circuit Court to this court (Doc. #

1).

fact. Id. Alternatively, a movant without a trial burden of production can assert,

without citing the record, that the nonmoving party “cannot produce admissible

evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R.

Civ. P. 56 advisory committee note (“Subdivision (c)(1)(B) recognizes that a party

need not always point to specific record materials. . . . [A] party who does not have

the trial burden of production may rely on a showing that a party who does have the

trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute

of material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). “[A]t the summary judgment

stage[,] the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”

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

III. BACKGROUND

On October 17, 2021, Officer Gregory Harvey was dispatched to 417 Glade

Park Drive, Montgomery, Alabama, on a domestic violence call. (Doc. # 62-1 at 7–

8, 10; Doc. # 54-7 at 3.)4 Officer Rene Helton accompanied Officer Harvey on the

call. “Domestic violence . . . calls are some of the most dangerous calls for a police

officer.” (Doc. # 54-7 at 2.) Per dispatch, Officer Harvey was informed that Tidera

Harris was at the house and that there were possibly warrants out for his arrest. (Doc.

# 62-1 at 9; Doc. # 62-2 at 26; Doc. # 54-7 at 3.)5 Officer Harvey was concerned

that “[t]here could be a physical altercation,” and his goal was to “[d]iffuse the

situation.” (Doc. # 54-3 at 12–13.) As the officers approached the residence, Officer

Harvey “could hear a verbal altercation.” (Doc. # 54-3 at 16.) Officer Harvey

opened the porch door and then the door to the house without knocking. (Doc. # 54-

5 at 00:50–00:58.)

Officer Harvey says he entered the house without knocking because he

thought he “need[ed] to step in and intervene before things g[o]t worse.” (Doc. #

54-3 at 16.) And he was concerned that, if he had knocked, “it would [have]

allow[ed] one of the subjects to grab a gun or to run or to do anything to make the

scene unsafe.” (Doc. # 54-3 at 16.) Officer Harvey announced that he was with the

Montgomery Police Department. (Doc. # 54-3 at 15; Doc. # 54-5 at 00:59–01:00.)

4 The entire incident is captured on the body camera footage (audio and video) from Officer

Harvey and Officer Helton. All non-video citations use the pagination as designated by the

CM/ECF filing system. The body camera footage is cited according to the time elapsed in the

recordings.

5 There is tension in the record over whether there were, in fact, warrants out for Mr.

Harris’s arrest. (Doc. # 62-1 at 9 (saying there were); Doc. # 62-2 at 26 (saying there were or there

“possibly” were); Doc. # 54-7 at 3 (saying there possibly were).)

Once inside the front door, Chimeka Minefield, Tidera Harris’s fiancé,

stepped to the front of the house, invited Officers Harvey and Helton in, told them

that “he [referring to Mr. Harris] taken all my stuff and throwing it in there. Y’all

need to get him. . . . Y’all need to get him.” (Doc. # 54-3 at 1:04–1:09; Doc. # 64-1

at 2; Doc. # 54-7 at 3.) Officer Harvey asked Ms. Minefield if there were “any

weapons inside the house,” and she said there were not. (Doc. # 54-3 at 1:12–1:14;

Doc. # 64-1 at 2.)

Mr. Harris stepped to the door and said, “I move my stuff; I move my stuff,

man. I move my stuff. I’m gonna leave. We’re moving it back to the front where

my landlord told me.” (Doc. # 54-5 at 01:15–01:21; Doc. # 64-1 at 3.) Ms.

Minefield interrupted and said, “He got warrants for his arrest,” which Mr. Harris

denied. (Doc. # 54-5 at 01:21–01:22; Doc. # 64-1 at 3; Doc. # 54-7 at 3.) Officer

Harvey asked if Mr. Harris had his I.D., and Officer Helton also asked if Ms.

Minefield and Mr. Harris had their I.D.s. (Doc. # 54-5 at 01:23–01:25; Doc. # 64-1

at 3.) Mr. Harris initially said he had his I.D., but when Officer Harvey asked to see

it, Mr. Harris said, “I don’t have my I.D. on me.” (Doc. # 54-5 at 01:25–01:27; #

64-1 at 3–4.) Ms. Minefield said, “I don’t even know where it is. My stuff throwed

around. . . . I don’t even know where it is.” (Doc. # 54-5 at 01:27–01:31; Doc. # 64-

1 at 4.) Mr. Harris interrupted Ms. Minefield and said, “No, I moved my stuff where

the landlord told me.” (Doc. # 54-5 at 01:30; Doc. # 64-1 at 4.)

Mr. Harris then waived his hand toward the door and said, “I’m fixing to come

outside on the porch to talk with y’all. I’ll be calling my landlord.” (Doc. # 54-5 at

01:32–01:34; Doc. # 64-1 at 4.) Both Officers asked Ms. Minefield and Mr. Harris

to step outside. (Doc. # 54-5 at 01:35–01:38; Doc. # 64-1 at 4.) Ms. Minefield

stepped out on the porch. (Doc. # 54-5 at 01:38–01:39; Doc. # 54-7 at 3.) Mr. Harris

said, “All right. I’m looking for my I.D.” (Doc. # 54-5 at 01:39–01:41; Doc. # 64-

1 at 4.) Officer Harvey said, “No, no, don’t worry about it, dawg. You’ve [got] to

leave. Move out.” (Doc. # 54-5 at 01:41-01:44; Doc. # 64-1 at 4.)

At that point, Mr. Harris walked through the dining room, through the kitchen,

and around to the living room. (Doc. # 54-5 at 01:41–01:51.) The living room was

dark, and Mr. Harris bent down to pick something up which made a rattling sound

(like keys). (Doc. # 54-5 at 01:50–01:52.) Officer Harvey turned his flashlight on

to observe what Mr. Harris was doing. (Doc. # 54-5 at 01:53–01:55; Doc. # 54-3 at

21.)

Officer Helton entered the living room and said to Mr. Harris, “Hey, sir, we

just need you to step outside because we don’t know if you have got weapons inside

the house or whatnot.” (Doc. # 54-5 at 01:56–02:01; Doc. # 64-1 at 5.) Mr. Harris

responded, “I got a weapon.” (Doc. # 54-5 at 02:01; Doc. # 64-1 at 5.) Officer

Helton responded, “Okay. So we’re going to ask you to step outside.” (Doc. # 54-

5 at 02:02–02:03; Doc. # 64-1 at 5.) Mr. Harris followed Officer Helton through the

living room, placing his cellphone in the right pocket of his shorts, and walked

toward the front door. (Doc. # 54-5 at 02:04–02:13.)

Just before he reached the front door, his cellphone started to ring. (Doc. #

54-5 at 02:11–02:14.) He turned back from the door, mumbling “I need shoes, man,”

and Officer Harvey said, “Just step out on the porch for me, dawg.” (Doc. # 54-5 at

02:13–02:15; Doc. # 64-1 at 5.) On the right side of the door, Mr. Harris bent down

and started to rummage through shoes and flip flops. (Doc. # 54-5 at 02:15–02:23.)

Officer Harvey patted him on the shoulder, gave him a light push, and said, “Hey,

don’t worry about shoes, man. Just step—just step out on the porch. You can go on

outside.” (Doc. # 54-5 at 02:23–02:24; Doc. # 64-1 at 5.) Mr. Harris dropped a flip

flop and asked, “Where?” (Doc. # 54-5 at 02:24–02:25.) Officer Harvey said, “Just

step out on the porch for me, on the front porch.” (Doc. # 54-5 at 02:25–02:27; Doc.

# 64-1 at 5.)

Mr. Harris turned back from the front door, said “I want to get my keys,” and

Officer Harvey said, “Okay. I gotcha.” (Doc. # 54-5 at 02:29–02:31; Doc. # 64-1

at 6.) Mr. Harris then walked through the dining room, the kitchen, and around into

the living room where he bent down at the same location he was previously. (Doc.

# 54-5 at 02:31–02:37.) As Mr. Harris was walking through the house again, Officer

Harvey said, “Hey, man, hey, hey, come here, man. Hey dawg, you got to step out

there and stop moving man.” (Doc. # 54-5 at 02:32–02:37; Doc. # 64-1 at 6.) In

response, Mr. Harris said, “I be coming out right now.” (Doc. # 54-5 at 02:38; Doc.

# 64-1 at 6.) Mr. Harris then walked through the living room, through the front door,

and onto the porch. (Doc. # 54-5 at 02:38–02:47.) He had his cellphone in his right

hand. (Doc. # 54-5 at 02:38–02:40.)

As he walked onto the porch, he lifted his cellphone to his ear and said,

“Hello.” (Doc. # 54-5 at 02:44–02:48; Doc. # 64-1 at 6.) Officer Helton was

standing at the porch screen door and said, “He [Officer Harvey] is going to talk to

you in here.” (Doc. # 54-5 at 02:50–02:51; Doc. # 64-1 at 6.) Officer Harvey

responded, “Yeah. We going outside.” (Doc. # 54-5 at 02:52–02:53; Doc. # 64-1

at 6.) Officer Helton told Officer Harvey, “He [Mr. Harris] got his car keys.” (Doc.

# 54-5 at 02:53–02:54; Doc. # 64-1 at 6.) Mr. Harris said, “I opened the car from

here, man.” (Doc. # 54-5 at 02:56; Doc. # 64-1 at 6.) Officer Harvey responded to

Officer Helton, “Okay. He good.” (Doc. # 54-5 at 02:57–02:58; Doc. # 64-1 at 6.)

Mr. Harris and Officer Harvey walked out the screen door and onto the front yard.

(Doc. # 54-5 at 02:59–03:01.)

Once in the front yard, Officer Harvey asked Mr. Harris, “What going on,

man?” (Doc. # 54-5 at 03:02; Doc. # 64-1 at 6.) Mr. Harris responded by saying the

following:

Man, we have a misunderstanding. I am going to leave. She told me

to move my stuff. The landlord told me to move all my stuff. That’s

what I am doing. I put my stuff in the front. I woke up, a

misunderstanding. I moved my stuff in the front; that was it.

(Doc. # 54-5 at 03:03–03:18; Doc. # 64-1 at 7.) Officer Harvey then said, “Okay.

So, y’all didn’t get into no—nothing?” (Doc. # 54-5 at 03:19–03:20; Doc. # 64-1 at

7.) Mr. Harris responded, “No. No. Nothing physical.” (Doc. # 54-5 at 03:20–

03:21; Doc. # 64-1 at 7.) Mr. Harris then looked toward his blue Dodge Charger

parked in the driveway. (Doc. # 54-5 at 03:23–03:26.) He then looked down at his

phone in his right hand. (Doc. # 54-5 at 03:27.) After this, Officer Harvey asked

Mr. Harris his name and date of birth, which Mr. Harris provided. (Doc. # 54-5 at

03:28–03:47; Doc. # 64-1 at 7–8.)

After giving Officer Harvey his date of birth, Mr. Harris turned his back on

Officer Harvey, lifted his cellphone to his ear, said “Hello,” and started walking

toward his Charger. (Doc. # 54-5 at 03:47–03:50; Doc. # 64-1 at 8.) As Mr. Harris

passed the bumper of the Charger, Officer Harvey said, “Hey, hey, no. Hey, dawg.”

(Doc. # 54-5 at 03:49–03:51; Doc. # 64-1 at 8.) Mr. Harris rounded the driver’s side

of the Charger and ran for the driver’s side door. (Doc. # 54-5 at 03:51–03:53; Doc.

# 54-6 at 02:40.) Officer Harvey ran after him. (Doc. # 54-5 at 03:50–03:53; Doc.

# 54-6 at 02:39–02:40.)

As Mr. Harris opened the driver’s side door and got into the car, with his back

toward Officer Harvey, Officer Harvey fired one shot, said “Hey, hey,” and then, a

split-second later, fired two shots. (Doc. # 54-5 at 03:52–03:54; Doc. # 64-1 at 8.)

Mr. Harris exclaimed, “Man, I ain’t got no gun, man. I ain’t got no gun. I got my

keys.” (Doc. # 54-5 at 03:58–04:01; Doc. # 64-1 at 8.) Two of Officer Harvey’s

three shots hit Mr. Harris—one in the right shoulder and one in the back. (Doc. #

54-5 at 04:41–03:57; Doc. # 64-1 at 9–10.)6 After the incident, no firearm was found

in Mr. Harris’s Charger (Doc. # 62-1 at 23; Doc. # 62-2 at 20), and there is no

evidence that Mr. Harris had a firearm on his person.

IV. DISCUSSION

Mr. Harris brings four claims against Defendants. (Doc. # 32 at 9–17.) In

Count I, Mr. Harris asserts that Officer Harvey committed assault and battery under

Alabama law against him. In Count II, Mr. Harris asserts, under 42 U.S.C. § 1983,

that Officer Harvey used excessive force against him in violation of the Fourth

Amendment. In Count III, Mr. Harris asserts that the City of Montgomery is liable

under Monell. In Count IV, Mr. Harris asserts that Officer Harvey was negligent

and/or wanton under Alabama law. Defendants have moved for summary judgment

on each claim. (Doc. # 52.) In Part A, the court will analyze Mr. Harris’s § 1983

claim against Officer Harvey. In Part B, the court will analyze Mr. Harris’s state

law claims against Officer Harvey. In Part C, the court will analyze Mr. Harris’s

Monell claim against the City of Montgomery.

6 Several of Mr. Harris’s and Ms. Minefield’s children were in the house during this

interaction. (Doc. # 54-3 at 17.)

A. 42 U.S.C. § 1983 Excessive Force Claim

Defendants argue that summary judgment should be granted on Mr. Harris’s

§ 1983 excessive force claim (Count II) for two reasons. First, Defendants argue

that Officer Harvey’s use of force against Mr. Harris was objectively reasonable

under the circumstances. (Doc. # 53 at 18–22; Doc. # 66 at 4–18.) Second,

Defendants argue that Officer Harvey is entitled to qualified immunity. (Doc. # 53

at 22–25; Doc. # 66 at 4–18.)

1. Objectively Reasonable Force Under the Circumstances

“[A]ll claims that law enforcement officers have used excessive force—

deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a

free citizen” are “analyzed under the Fourth Amendment and its ‘reasonableness’

standard.” Graham v. Connor, 490 U.S. 386, 395 (1989); Tennessee v. Garner, 471

U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use of deadly

force is a seizure subject to the reasonableness requirement of the Fourth

Amendment.”).7 To “determine[e] the reasonableness of the force applied,” the

court “look[s] at the fact pattern from the perspective of a reasonable officer on the

scene with knowledge of the attendant circumstances and facts, and balance[s] the

7 “[A] Fourth Amendment seizure [occurs] . . . when there is a governmental termination

of freedom of movement through means intentionally applied.” Scott v. Harris, 550 U.S. 372, 381

(2007) (alterations in original) (quoting Brower v. County of Inyo, 489 U.S. 593, 596–597 (1989)).

“[T]he 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 v. Ferraro, 284 F.3d 1188, 1197

(11th Cir. 2002) (quoting Graham, 490 U.S. at 396).

risk of bodily harm to the suspect against the gravity of the threat the officer sought

to eliminate.” Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013).8

But what does “reasonableness” mean? “The test of reasonableness under the

Fourth Amendment is not capable of precise definition or mechanical application.”

Bell v. Wolfish, 441 U.S. 520, 559 (1979). Ordinarily, “[t]he reasonableness of the

force used can depend on a number of factors.” Cantu v. City of Dothan, 974 F.3d

1217, 1229 (11th Cir. 2020).9 Under this multi-factored inquiry, the court would

have to “‘slosh [its] way through the factbound morass of’ the ‘reasonableness’

analysis.” Harris-Billups ex rel. Harris v. Anderson, 61 F.4th 1298, 1302 (11th Cir.

2023) (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).

But where deadly force has been used “a bright(ish) line emerges: ‘[A]n

officer may use deadly force when [he] has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or to others.’” Id. (first

8 Since there were potentially warrants out for Mr. Harris’s arrest, this incident could be

viewed as an arrest. But Officer Harvey never told Mr. Harris that he was under arrest or attempted

to take him into custody. (Doc. # 54-3 at 18.) Rather, he sought to investigate the domestic

violence situation, which would be akin to an investigatory stop. (See Doc. # 54-3 at 18.) The

court does not decide what type of interaction this was because, in either case, the same Fourth

Amendment standard applies.

9 For example, the Supreme Court has directed lower courts to “consider ‘the severity of

the crime at issue, whether the suspect pose[d] 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, 974 F.3d at 1229 (alterations in original) (quoting Graham, 490 U.S. at 396). The Eleventh

Circuit has directed district courts to also consider “the need for force to be applied,” “the amount

of force applied in light of the nature of the need,” and “the severity of the injury.” Patel v. City

of Madison, 959 F.3d 1330, 1339 (11th Cir. 2020); see also Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015) (providing a different articulation of six factors).

alteration in original) (quoting Powell v. Snook, 25 F.4th 912, 922 (11th Cir.), cert.

denied, 143 S. Ct. 110 (2022)).10 “Probable cause, in turn, exists when the ‘facts

and circumstances [are] sufficient to warrant a prudent’ officer in reaching that

conclusion.” Id. (alteration in original) (quoting Black v. Wigington, 811 F.3d 1259,

1267 (11th Cir. 2016)).11 “And to be clear, the inquiry is an objective one.” Id.

“[T]he 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.” Graham, 490 U.S. at 397. “An officer’s evil

intentions will not make a Fourth Amendment violation out of an objectively

reasonable use of force; nor will an officer’s good intentions make an objectively

unreasonable use of force constitutional.” Id. 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.” Id. at 396. Indeed, “[t]he calculus

of reasonableness must embody allowance for the fact that police officers are often

10 Deadly force is “force that an officer ‘knows to create a substantial risk of causing death

or serious bodily harm.’” Bradley v. Benton, 10 F.4th 1232, 1241 (11th Cir. 2021) (quoting Pruitt

v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985)), cert. denied, 142 S. Ct. 1112

(2022). Shooting someone with a pistol creates a substantial risk of causing death or serious bodily

harm and, thus, is deadly force. And Officer Harvey knew that shooting Mr. Harris created such

risks. (See Doc. # 62-1 at 26; Doc. # 62-2 at 14–15.) Unfortunately for all involved, especially

Mr. Harris, this particular use of deadly force resulted in very serious injury.

11 “‘Probable cause,’ the Supreme Court has emphasized, ‘is not a high bar.’” Harris-

Billups, 61 F.4th at 1302 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)).

Probable cause “requires only a probability or substantial chance of criminal activity, not an actual

showing of such activity.” Wesby, 138 S. Ct. at 586 (quoting Illinois v. Gates, 462 U.S. 213, 243–

44, n.13 (1983)).

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.” Id. at 396–97.

The facts, viewed in the light most favorable to Mr. Harris, Cantu, 974 F.3d

at 1228, demonstrate that he did not pose “a threat of serious physical harm” to

Officer Harvey, Officer Helton, Ms. Minefield, or the children at any point during

the incident. Harris-Billups, 61 F.4th at 1302 (quoting Powell, 25 F.4th at 922).

Before entering the house, Officer Harvey did not possess information that

Mr. Harris posed “a threat of serious physical harm.” Id. Officer Harvey believed

that he was entering a potentially volatile domestic violence situation. (See Doc. #

54-3 at 12–13.) But that general knowledge did not inform Officer Harvey about

the threat Mr. Harris posed. In addition, Officer Harvey did not have any

information about Mr. Harris’s criminal record beyond that Mr. Harris “had

warrants, or possibly had warrants” out for his arrest. (Doc. # 62-2 at 26; see also

Doc. # 54-7 at 3.) Such generic knowledge could not serve as a basis for believing

that Mr. Harris posed a threat of serious harm.

While he was in the house, Mr. Harris did not pose any threat to anyone.

Officer Harvey says that there was not an “imminent threat.” (See Doc. # 62-1 at

13.) Mr. Harris did not exhibit any threatening behavior toward either of the officers.

And he did not say anything threatening to either of them. (Doc. # 54-3 at 22.)

Rather, he was a man having a disagreement with his fiancé about his housing

situation. (Doc. # 54-5 at 01:15–01:21; Doc. # 64-1 at 3.) And he gave reasons why

he did not exit the house right away. First, he was looking for his I.D. (Doc. # 54-

5 at 01:39–01:41; Doc. # 64-1 at 4.) Second, he wanted to put shoes on before going

outside. (Doc. # 54-5 at 02:13–02:23; Doc. # 64-1 at 5.) Third, he wanted to get his

car keys. (Doc. # 54-5 at 02:29–02:31; Doc. # 64-1 at 6.) Offhandedly, Mr. Harris

did tell Officer Helton that “I got a weapon.” (Doc. # 54-5 at 02:01; Doc. # 64-1 at

5.) But, in contrast, Ms. Minefield told Officer Harvey that there were no weapons

in the house. (Doc. # 54-3 at 1:12–1:14; Doc. # 64-1 at 2.) There is no indication in

the body camera footage, apart from this stray comment, that Mr. Harris was armed.

And Officer Harvey allowed Mr. Harris to get his keys and take them outside. (Doc.

# 54-5 at 02:29–02:37, 02:53–02:54, 02:57–02:58; Doc. # 64-1 at 6.)

Once outside, Mr. Harris also did not pose a threat of serious harm. He

cooperatively told Officer Harvey what was going on and gave him his name and

date of birth. (Doc. # 54-5 at 03:03–03:18, 03:28–03:47; Doc. # 64-1 at 7–8.) Mr.

Harris never pulled a firearm on Officer Harvey. (Doc. # 62-1 at 15.) During this

interaction, Ms. Minefield was on the porch with Officer Helton (Doc. # 54-6 at

01:53–02:36), and the children were in the house (see Doc. # 54-3 at 17). As Mr.

Harris was opening the driver’s side door and sitting down, Officer Harvey shot him

twice—in the back and in the shoulder. (Doc. # 54-5 at 03:52–03:54; Doc. # 64-1

at 8.) After being shot, Mr. Harris exclaimed that he did not have a gun (Doc. # 54-

5 at 03:58–04:01; Doc. # 64-1 at 8). After the incident, no firearm was found in Mr.

Harris’s Charger (Doc. # 62-1 at 23; Doc. # 62-2 at 20), and there is no evidence in

the record that Mr. Harris had a firearm on his person.

Officer Harvey has a different perspective on what happened. While in the

house, “[d]ue to the way [Mr. Harris] was rummaging through things,” Officer

Harvey thought “maybe he was looking for a weapon.” (Doc. # 54-3 at 23; see also

Doc. # 62-1 at 13 (“He did things in the house that day that made me raise

alarm[.]”).)12 And once outside, Officer Harvey says that he “had a reasonable

suspicion that there was a weapon inside the car.” (Doc. # 54-3 at 42.) Officer

Harvey says his reasonable suspicion was based on Mr. Harris disobeying orders,

“rummaging through the house after being told not to,” “passively resisting,” and

“bolting to the car” after Officer Harvey told him “No.” (Doc. # 54-3 at 35, 43.)

Moreover, Officer Harvey says that “[a]t the time [he] shot, Mr. Harris was an

immediate threat because [Officer Harvey] did not know what was inside the car.”

(Doc. # 54-4 at 17.)

But the question is not whether Officer Harvey “actually believed that the

circumstances justified the use of deadly force, but rather whether a reasonable

officer in [his] position could have so concluded.” Harris-Billups, 61 F.4th at 1302

12 Officer Helton thought the same thing. (Doc. # 54-7 at 4 (“I did not know if Tidera

Harris had weapons, or if what he was searching for and/or reaching for was a weapon.”).)

(citing Graham, 490 U.S. at 397); Penley v. Eslinger, 605 F.3d 843, 852 (11th Cir.

2010) (noting that the relevant inquiry is whether a reasonable officer in the same

situation would have “believed that” the suspect was “gravely dangerous”). Viewing

the facts in the light most favorable to Mr. Harris, Cantu, 974 F.3d at 1228, the court

finds that a reasonable jury could find that Officer Harvey did not have probable

cause to use deadly force against Mr. Harris. Determining the reasonableness of

Officer Harvey’s use of deadly force is left for trial.

2. Qualified Immunity

Defendants also assert that, based on qualified immunity, summary judgment

should be granted on Mr. Harris’s § 1983 claim against Officer Harvey. “The

doctrine of qualified immunity shields officers from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” City of Tahlequah v. Bond, 142 S.

Ct. 9, 11 (2021) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). “[Q]ualified immunity protects ‘all but the plainly incompetent or those

who knowingly violate the law.’” Id. (quoting District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018)).

“To be protected by the doctrine of qualified immunity, a government official

must first establish that [he] was acting within the scope of [his] discretionary

authority.” Cantu, 974 F.3d at 1228. “[D]iscretionary authority . . . include[s] all

actions of a governmental official that (1) were undertaken pursuant to the

performance of his duties, and (2) were within the scope of his authority.” Jones v.

Fransen, 857 F.3d 843, 851 (11th Cir. 2017) (second alteration in original) (quoting

Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)). There is no dispute that Officer

Harvey was acting within the scope of his discretionary authority on October 17th.

Once an officer establishes that he acted within the scope of his discretionary

authority, “the burden shifts to the plaintiff to show that qualified immunity is not

appropriate.” Powell, 25 F.4th at 920 (quoting Penley, 605 F.3d at 849).

“To overcome a qualified immunity defense where the defendant acted within

his discretionary authority, the plaintiff must show that the defendant’s actions not

only violated one or more constitutional rights, but also that it was clearly established

at the time that those specific actions did so.” Id. “‘[T]he salient question . . . is

whether the state of the law’ at the time of [the] incident provided ‘fair warning’ to

the defendant[] ‘that [his] . . . conduct was unconstitutional.’” Tolan v. Cotton, 572

U.S. 650, 656 (2014) (first alteration in original) (quoting Hope v. Pelzer, 536 U.S.

730, 741 (2002)). Since the question of whether Officer Harvey violated Mr.

Harris’s Fourth Amendment right to be free from excessive force is for the jury, the

only question remaining is whether that right was clearly established when Officer

Harvey shot Mr. Harris.

“[T]he clearly established law standard is a demanding one.” Cantu, 974 F.3d

at 1235. Mr. Harris can satisfy the standard in one of the following three ways:

(1) by pointing to a materially similar decision of the Supreme Court,

of [the Eleventh Circuit], or of the [Supreme Court of Alabama]; (2) by

establishing that “a broader, clearly established principle should control

the novel facts” of the case; or (3) by convincing [the court] that the

case is one of those rare ones that “fits within the exception of conduct

which so obviously violates th[e] [C]onstitution that prior case law is

unnecessary.”

Powell, 25 F.4th at 920 (fourth alteration in original) (quoting Mercado v. City of

Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)).13

As to the first method, the Eleventh Circuit does “not require a case directly

on point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” Bradley v. Benton, 10 F.4th 1232, 1242 (11th Cir. 2021)

(quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011)), cert. denied, 142 S. Ct.

1112 (2022). As to the second method, “[t]o control a novel factual situation, a

broad 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 . . . violate[d] federal law when the official acted.’”

Id. (quoting Waldron v. Spicher, 954 F.3d 1297, 1305 (11th Cir. 2020)). And the

13 Although the Eleventh Circuit has “recognized that options two and three can suffice,

the Supreme Court has warned [courts] not to ‘define clearly established law at a high level of

generality.’” Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (quoting Plumhoff v.

Rickard, 572 U.S. 765, 779 (2014)). “For that reason, the second and third paths are rarely-trod

ones.” Id.

broad principle “must ‘appl[y] with obvious clarity to the circumstances.’” Crocker

v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (quoting Long v. Slaton, 508 F.3d

576, 584 (11th Cir. 2007)).

Mr. Harris has not produced a case that meets the requirements of the first

method for showing that the relevant right was clearly established—a case involving

an investigatory stop where the suspect is unarmed, does not act violently, flees

toward his car, and then is shot twice from behind.14 And the court is not aware of

any other case decided by the Supreme Court, by the Eleventh Circuit, or by the

Alabama Supreme Court that is “materially similar” to this case. Powell, 25 F.4th

at 920.

But Mr. Harris has pointed “to a broader, clearly established principle [that]

should control the novel facts in [his] situation.” Salvato v. Miley, 790 F.3d 1286,

1294 (11th Cir. 2015) (alterations in original) (quoting Morton, 707 F.3d at 1282);

(see Doc. # 61 at 8.) That “clearly established” principle is the following: “Using

deadly force, without warning, on an unarmed, retreating suspect is excessive.”

Salvato, 790 F.3d at 1294; Hunter v. City of Leeds, 941 F.3d 1265, 1281 (11th Cir.

2019) (quoting Salvato, 790 F.3d at 1294). According to the Eleventh Circuit, its

“precedents and those of the Supreme Court make clear that firing without first

14 The court does not analogize from the cases that Mr. Harris provides (Doc. # 61 at 21)

because those cases do not put the “question beyond debate.” Bradley, 10 F.4th at 1242 (quoting

Ashcroft, 563 U.S. at 741).

warning on a retreating, apparently unarmed suspect is excessive.” Salvato, 790

F.3d at 1294; see Garner, 471 U.S. at 1 (“A police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.”); see also Smith v. LePage, 834 F.3d

1285, 1297 (11th Cir. 2016) (“[T]he Supreme Court has ruled it unreasonable to

shoot an unarmed person who is escaping, even when the person has committed a

felony.”). As a result, Officer Harvey had “fair warning” that his use of force against

Mr. Harris was excessive. Salvato, 790 F.3d at 1294 (quoting Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004)). In other words, this

principle is obviously clear. Bradley, 10 F.4th at 1242.15

And the principle clearly applies to the facts of this case. Crocker, 995 F.3d

at 1240. First, by shooting Mr. Harris twice, Officer Harvey used deadly force

against him. Bradley, 10 F.4th at 1241 (defining deadly force). Second, Officer

Harvey did not give Mr. Harris a warning before shooting at him. Saying “Hey, hey,

no. Hey, dawg” before shooting was not a warning to Mr. Harris that Officer Harvey

was about to shoot. (Doc. # 54-5 at 03:49–03:51; Doc. # 64-1 at 8.) Third, as already

discussed, there is no indication that Mr. Harris was armed when he was shot.

Rather, Officer Harvey was concerned that Mr. Harris may have had a weapon in his

15 Other district courts in this Circuit have found that this principle is clearly established.

Kinsey v. Aledda, No. 16-CV-23330-JAL, 2018 WL 11352486, at *9 (S.D. Fla. Feb. 28, 2018);

Horton v. Morgan Cnty. Sheriff’s Dep’t, No. 5:16-CV-923-CLS, 2016 WL 6576986, at *8 (N.D.

Ala. Nov. 7, 2016); Chruma v. Bosarge, No. 15-CV-132-WS, 2016 WL 3199526, at *8 (S.D. Ala.

June 8, 2016).

Charger. (Doc. # 54-4 at 17.) Fourth, Mr. Harris was walking (and then running)

away from Officer Harvey toward his Charger (i.e., he was retreating) and had his

back turned toward Officer Harvey when Officer Harvey shot. (Doc. # 54-5 at

03:48–03:55; Doc. # 54-6 at 02:39–02:41.) Viewing the facts in the light most

favorable to Mr. Harris, Cantu, 974 F.3d at 1228, the court finds that the right Officer

Harvey may have violated was clearly established at the time of the shooting. For

these reasons, Officer Harvey’s qualified immunity defense will be denied.

Because Defendants’ arguments that Officer Harvey’s use of force was

reasonable and that he is entitled to qualified immunity fail, their motion for

summary judgment is due to be denied as to Mr. Harris’s § 1983 claim (Count II).

B. State Law Claims

Defendants argue that summary judgment should be granted on Mr. Harris’s

state law claims of assault and battery (Count I) and negligence and/or wantonness

(Count IV). (Doc. # 53 at 29–34.) “To establish negligence” under Alabama law, a

“plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty;

(3) proximate causation; and (4) damage or injury.” Hilyer v. Fortier, 227 So. 3d

13, 22 (Ala. 2017) (quoting Lemley v. Wilson, 178 So. 3d 834, 841 (Ala. 2015)). “To

establish wantonness, the plaintiff must prove that the defendant, with reckless

indifference to the consequences, consciously and intentionally did some wrongful

act or omitted some known duty. To be actionable, that act or omission must

proximately cause the injury of which the plaintiff complains.” Id. (quoting Lemley,

178 So. 3d at 841–42). Under Alabama law, an assault is:

an intentional, unlawful, offer to touch the person of another in a rude

or angry manner under such circumstances as to create in the mind of

the party alleging the assault a well-founded fear of an imminent

battery, coupled with the apparent present ability to effectuate the

attempt, if not prevented.

Allen v. Walker, 569 So. 2d 350, 351 (Ala. 1990) (quoting Holcombe v. Whitaker,

294 Ala. 430, 435 (1975)). And under Alabama law, to establish a claim of battery,

“a plaintiff must establish: (1) that the defendant touched the plaintiff; (2) that the

defendant intended to touch the plaintiff; and (3) that the touching was conducted in

a harmful or offensive manner.” Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190,

1193 (Ala. 1998).

Defendants argue that Mr. Harris’s state law claims fail because he cannot

establish these required elements. (Doc. # 53 at 30–31.) In his response, Mr. Harris

states that “[e]ach of these state law claims . . . are well documented and supported

by the facts and evidence . . . documenting [his] Fourth Amendment claim.” (Doc.

# 61 at 28.) Specifically, Officer Harvey’s “use of excessive force . . . illustrate[s]

not only [his] Fourth Amendment violation, but also his negligent and wanton

assault and battery of [Mr.] Harris.” (Doc. # 61 at 29.) Viewing the facts in the light

most favorable to Mr. Harris, Cantu, 974 F.3d at 1228, the court finds that a

reasonable jury could find that Officer Harvey’s use of deadly force against Mr.

Harris satisfied the elements of one (or more) of these torts—assault, battery,

negligence, or wantonness—under Alabama law.

Defendants also argue that summary judgment should be granted because

Officer Harvey is entitled to state-agent immunity. (Doc. # 53 at 31–34; Doc. # 66

at 22–24.) Alabama law provides that “[e]very peace officer . . . shall have immunity

from tort liability arising out of his or her conduct in performance of any

discretionary function within the line and scope of his or her law enforcement

duties.” Ala. Code § 6-5-338(a). The Alabama Supreme Court’s decision in Ex

Parte Cranman, 792 So. 2d 392 (Ala. 2000) governs this grant of state-agent

immunity. Ex Parte City of Midfield, 161 So. 3d 1158, 1163 (Ala. 2014). In that

case, the Alabama Supreme Court said the following:

A State agent shall be immune from civil liability in his or her personal

capacity when the conduct made the basis of the claim against the agent

is based upon the agent’s . . . exercising judgment in the enforcement

of the criminal laws of the State, including, but not limited to law-

enforcement officers’ arresting or attempting to arrest persons[.] . . .

Notwithstanding anything to the contrary in the foregoing statement of

the rule, a State agent shall not be immune from civil liability in his or

her personal capacity (1) when the Constitution or laws of the United

States, or the Constitution of this State, or laws, rules, or regulations of

this State enacted or promulgated for the purpose of regulating the

activities of a governmental agency require otherwise; or (2) when the

State agent acts willfully, maliciously, fraudulently, in bad faith,

beyond his or her authority, or under a mistaken interpretation of the

law.

Cranman, 792 So.2d at 405.

“The Alabama Supreme Court has largely equated qualified immunity with

discretionary-function immunity.” Hunter, 941 F.3d at 1284. “That means the same

facts that establish an officer is not entitled to qualified immunity ‘also establish that

[he] is not entitled to’ state agent immunity.” Cantu, 974 F.3d at 1236 (quoting

Hunter, 941 F.3d at 1284). “Under both Alabama law and federal law, the core issue

is whether a defendant violated clearly established law.” Sheth v. Webster, 145 F.3d

1231, 1239 (11th Cir. 1998). For the same reasons Officer Harvey’s qualified

immunity defense fails on Mr. Harris’s § 1983 claim, the court will also deny Officer

Harvey’s “discretionary-function immunity” defense for Mr. Harris’s state law tort

claims. See Hunter, 941 F.3d at 1284 (doing the same); Cantu, 974 F.3d at 1236

(same).

Defendants’ motion for summary judgment is due to be denied as to Mr.

Harris’s state law claims (Count I and Count IV).

C. Monell Claim

Finally, Defendants argue that summary judgment should be granted on Mr.

Harris’s Monell claim against the City of Montgomery (Count III). (Doc. # 53 at

25–28; Doc. # 66 at 18–22.) “Under Monell, ‘a municipality can be found liable

under § 1983 only where the municipality itself causes the constitutional violation at

issue.’” Baxter v. Roberts, 54 F.4th 1241, 1269–70 (11th Cir. 2022) (quoting City

of Canton v. Harris, 489 U.S. 378, 385 (1989)). “Respondeat superior or vicarious

liability will not attach under § 1983.” City of Canton, 489 U.S. at 385. “To impose

Monell liability, ‘a 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.’” Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th Cir. 2021)

(quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).

Assuming for the sake of argument that Mr. Harris’s constitutional rights were

violated, his Monell claim against the City of Montgomery fails at the second step

of the analysis. Mr. Harris has produced no evidence that the City of Montgomery

“had a custom or policy that constituted deliberate indifference” to the right that

Officer Harvey may have violated—the right to be free from excessive force under

the Fourth Amendment. McDowell, 392 F.3d at 1289. “A plaintiff can establish the

existence of a municipal policy or custom in several ways.” Baxter, 54 F.4th at 1270.

These include the following:

(1) pointing to an official policy; (2) identifying “a widespread practice

that, although not authorized by written or express municipal policy, is

so permanent and well settled as to constitute a custom or usage with

the force of law”; or (3) demonstrating that the municipality “tacitly

authorize[d]” or “displaye[d] deliberate indifference towards” the

“constitutionally offensive actions of its employees.”

Id. (alterations in original) (quoting Griffin v. City of Opa-Locka, 261 F.3d 1295,

1308 (11th Cir. 2001)). Mr. Harris has not established that the City of Montgomery

had a policy or custom in any of these ways.

“Ultimately, the plaintiff must show that the municipality’s ‘policies [were]

the moving force behind the constitutional violation.’” Id. (alteration in original)

(quoting City of Canton, 489 U.S. at 379). There is no evidence in the record that

the City of Montgomery’s policies were the moving force behind Officer Harvey’s

decision to shoot Mr. Harris on October 17, 2021. Viewing the facts in the light

most favorable to Mr. Harris, Cantu, 974 F.3d at 1228, there is no genuine dispute

of material fact as to his Monell claim. For these reasons, Defendants’ motion for

summary judgment is due to be granted as to Mr. Harris’s Monell claim against the

City of Montgomery (Count III).

V. CONCLUSION

For the reasons provided, it is ORDERED that Defendants’ motion for

summary judgment (Doc. # 52) is GRANTED in part and DENIED in part. It is

GRANTED as to Count III, and it is DENIED as to all other counts. Counts I, II,

and IV proceed to trial.

DONE this 24th day of May, 2023.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE