Harris v. Hall

U.S. DISTRICT.

N.D. OF AL

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

BETTY HARRIS, as Personal )

Representative of the Estate )

of Wallace Wilder, )

)

Plaintiff, 7:21-cv-00608-LSC

Vv. )

)

TODD HALL, et al, )

)

Defendants. )

MEMORANDUM OF OPINION

Plaintiff Betty Harris, as the Personal Representative of the Estate of Wallace

Wilder, brings this civil rights and wrongful death action against several law

enforcement officers and other allegedly responsible parties. Most of the defendants

have either settled or have been dismissed; only Plaintiff’s claims against Defendants

Michael Gilliam and Samuel Powell (“‘Defendants”) remain pending. Before the

Court are cross motions for summary judgment filed by Plaintiff and Defendants.

(Docs. 105, 107.) The motions are fully briefed and are ripe for review. (See docs.

105, 107, 112, 113, 117, 118.) For the reasons stated below, Plaintiff’s motion is due

to be DENIED, and Defendants’ motion is due to bb GRANTED.

Page 1 of 27

I. | BACKGROUND'?

On the morning of August 28, 2019, Wilder woke his neighbors by slamming

doors in his apartment “‘so hard that it rattled [his neighbors’ | bedroom wall.” (Doc.

105-23 at 2.) The neighbors described hearing Wilder “screaming about someone

breaking into his house and stealing his food.” (/d.) One of the neighbors claimed

she heard two voices coming from Wilder’s apartment through a shared wall, and

1 The facts set out in this Opinion are gleaned from the parties’ submissions of facts claimed

to be undisputed, their respective responses to those submissions, and the Court’s own

examination of the evidentiary record. These are the “facts” for summary judgment purposes

only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17

F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence

supporting a party’s position. As such, review is limited to exhibits and specific portions of the

exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1061

(11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts buried in a

massive record....”).

2 Subject to a “few qualifications,” Plaintiff concedes that Defendants’ statement of facts is

accurate. (Doc. 113 at 3.) As Defendants note, Plaintiff fails to support any objection she has to

Defendants’ statement of facts with record evidence. (See id. at 1-3.) Under this Court’s Uniform

Initial Order, Defendants’ statement of facts is thus deemed admitted. (See doc. 6 at 16-17 (“Any

statements of fact that are disputed by the non-moving party must be followed by a specific

reference to those portions of the evidentiary record upon which the dispute is based. All material

facts set forth in the statement required of the moving party will be deemed to be admitted for summary

judgment purposes unless controverted by the response of the party opposing summary judgment.”

(emphasis in original).) Accord Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“[M]ere

conclusions and unsupported factual allegations are legally insufficient to defeat a summary

judgment motion.”) (citation omitted). Nevertheless, most of the facts material to the resolution

of the present motions are established by Sergeant Cory Patterson’s body camera footage, and in

considering Defendants’ motion this Court views the evidence in the light most favorable to

Plaintiff. Animal Legal Def: Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015);

but see Scott v. Harris, 550 U.S. 372, 380-81 (2007) (“The Court of Appeals ... should have viewed

the facts in the light depicted by the videotape.”’).

Page 2 of 27

that it sounded like Wilder was talking to another person. (Doc. 105-24.) Feeling

“nervous” and “threatened” by Wilder’s behavior, the neighbors called the police

to report the disturbance. (Docs. 105-23 at 2; 105-24.) Wilder also called the police

to report someone being at his apartment. (Doc. 105 4 11.)

At around 5:05 p.m., Sergeant Cory Patterson arrived at Wilder’s apartment

in response to a disturbance call. (/d. J 13.) After knocking on Wilder’s door and

announcing his presence, Patterson attempted to engage Wilder in conversation.

(Doc. 107-3 at 0:15-50.) He informed Wilder that he was just there to check on him;

Wilder responded that he was not going to open the door. (/d. at 1:19-29.) Over the

course of the next half hour, Patterson tried several times to get Wilder to come out

and talk, but each time, Wilder refused. (See zd.)

Between attempts to convince Wilder to come out, Patterson talked to some

neighbors, who expressed concern for Wilder’s recent behavior. (See zd. at 6:23-

18:25.) The neighbor who made the disturbance call told Patterson that Wilder had

not physically threatened the neighbor, but that Wilder had previously been

institutionalized after killing somebody with a hammer.’ (/d. at 10:25-48.) He said

that Wilder was “off his medicine,” and that his behavior had “gotten so bad” that

the neighbor was “concerned about [his] family.” (/d. at 8:52-9:13.) He expressed

3 Plaintiff explains that Wilder suffered from paranoid schizophrenia, and in 1988 he was

hospitalized after being acquitted of murder by reason of mental disease or defect. (Doc. 20 16.)

Page 3 of 27

his opinion to Patterson that “somebody has got to do something before something

happens that can’t be taken back.” (/d. at 9:40-46.)

At around 5:38 p.m., Gordo Chief of Police Johnny Stephenson arrived at the

scene and called for additional officers to come assist. (/d. at 32:55; doc. 105 16.)

Seven other law enforcement officers, including Powell and Gilliam, responded. (Ja.

q 18.) Stephenson and another officer told Powell that “there was a barricaded

subject” and that Wilder had reported a break-in that morning, leading Powell to

believe there was possibly another person in Wilder’s apartment. (Doc. 105-27 at 2.)

Gilliam was likewise told that “there was a barricaded subject and that there was

potentially another individual in the apartment.” (Doc. 105-27 at 2.)

Chief Stephenson, who was familiar with Wilder’s history of mental illness,

formed a plan to “convince [Wilder] to go to the hospital” and get help, as he had

done in the past. (Doc. 105 J 3, 17; doc. 107 2, 10.) That plan involved having

Powell distract Wilder at a side window while other officers attempted to forcibly

enter his apartment through the front door. (Doc. 105 J 19.) It also involved calling

an ambulance to transport Wilder to the hospital, which one of the officers did before

they attempted entry. (Doc. 107-3 at 47:30-36.)

At about 5:57 p.m., Chief Stephenson attempted to enter Wilder’s apartment

using a key provided by a maintenance man who worked at the apartment complex.

Page 4 of 27

(Id. at 22:20-27, 52:10.) After the key failed to unlock the door, Patterson kicked the

door open, saw Wilder, and said, “Oh, he’s got a knife, he’s got a knife, he’s got a

knife!” (Ud. at 52:12-18.) Wilder slammed the door shut. (/d.) Patterson kicked the

door open a second time and deployed his taser at Wilder. (/d. at 52:45-52.) The

taser missed, and Wilder shut his door again. (Doc. 105 {J 22-23.) Stephenson

opened the door a third time. (/d. 7 24.) One officer tried and failed to tase Wilder,

and another officer apparently tased himself while attempting to tase Wilder. (See

doc. 107-3 at 52:55-53:12.) Wilder closed the door once more. (/d. at 53:05.)

An officer opened Wilder’s door a fourth time and placed a bench in the

opening to prevent the door from closing. (Doc. 105 25.) Stephenson tried to

convince Wilder to come out, but he refused. (Doc. 107-3 at 54:00-10.) Another

officer ordered Wilder to drop his knife, to which he responded, “I ain’t dropping

shit.” (/d. at 54:16-20.) Stephenson deployed a taser at Wilder, this time making

contact. (Doc. 105 J 29.) Wilder fell backward. (/d. J 30.)

Several officers, including Powell, entered the apartment to subdue Wilder.

As they neared, Wilder stood up holding the knife. (Za. J 31.) The officers tried

to retreat, but two were blocked in by a table. (/d.) As Wilder advanced on those two

officers with the knife, they shot him. (/d. 7 33.) An autopsy report indicates Wilder

died that day from multiple gunshot wounds. (Doc. 105-18 at 1.)

Page 5 of 27

Gilliam did not enter the apartment until the shots were fired. (/d. 34.)

Neither Gilliam nor Powell discharged any weapon during this entire encounter. (Jd.

q 35.) Nevertheless, Plaintiff claims they are responsible for Wilder’s death.

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows 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). A dispute is genuine if “the record taken as a

whole could lead a rational trier of fact to find for the nonmoving party.” Hzckson

Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine

dispute as to a material fact exists “if the nonmoving party has produced evidence

such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.

BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.

Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge

should not weigh the evidence, but should determine whether there are any genuine

issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the non-moving party by “view|ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal Legal

Page 6 of 27

Def: Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated

assertions alone are not enough to withstand a motion for summary judgment.”

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory

allegations and “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d

1207, 1219 (11th Cir. 2016) (per curzam) (quoting Young v. City of Palm Bay, Fla., 358

F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the

moving party has the burden of either negating an essential element of the

nonmoving party’s case or showing that there is no evidence to prove a fact necessary

to the nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d

1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting

motions for summary judgment, “[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

Ill. DISCUSSION

Plaintiff alleges several constitutional violations under 42 U.S.C. § 1983 and

wrongful death claims under Alabama law. Although Plaintiff’s claims and theories

of liability are varied, they all are based on Defendants’ failure to intervene in the

Page 7 of 27

warrantless entry into Wilder’s home and his subsequent seizure by other officers.

Defendants insist they did not violate Wilder’s constitutional rights, and even if they

did, they are nonetheless entitled to qualified immunity from Plaintiff’s § 1983

claims. As to Plaintiff’s state-law claims, they assert state-agent immunity. This

Court first outlines the principles of qualified immunity, then applies those

principles to Plaintiff’s § 1983 claims, and closes by addressing Defendants’

immunity from the state-law claims.

A. Qualified immunity shields Powell and Gilliam from § 1983 liability

unless Plaintiff shows that they violated clearly established law.

Qualified immunity “gives government officials breathing room to make

reasonable but mistaken judgments.” Messerschmidt v. Millender, 565 U.S. 535, 546

(2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). It “allow[s]

government officials to carry out their discretionary duties without the fear of

personal liability or harassing litigation, protecting from suit all but the plainly

incompetent or one who is knowingly violating the federal law.” Brown v. City of

Huntsville, Ala., 608 F.3d 724, 733 (11th Cir. 2010) (quoting Lee v. Ferraro, 284 F.3d

1188, 1194 (11th Cir. 2002)). “Qualified immunity offers complete protection for

government officials sued in their individual capacities if their conduct ‘does not

violate clearly established statutory or constitutional rights of which a reasonable

Page 8 of 27

person would have known.’” Jd. (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346

(11th Cir. 2002)).4

To overcome a qualified immunity defense, a plaintiff must satisfy a two-part

test. Jd. at 734. First, “the facts, construed as they must be ... in the light most

favorable to the plaintiff,” must establish that the defendant violated a constitutional

right. Jd. Second, the plaintiff must show that the violated right was “clearly

established” when it was violated. Jd. “|['T his two-pronged analysis may be done in

whatever order is deemed most appropriate for the case.” Jd. (citing Pearson ».

Callahan, 555 U.S. 223, 129 (2009)).

A right was clearly established when it was violated if “the state of the law

gave the defendants fair warning that their alleged conduct was unconstitutional.”

Washington v. Rivera, 939 F.3d 1239, 1245 (11th Cir. 2019) (quoting Vaughan v. Cox,

343 F.3d 1323, 1332 (11th Cir. 2003)). “Fair warning comes in the form of [materially

similar] binding caselaw from the Supreme Court, the Eleventh Circuit, or the

highest court of the state ([Alabama], here) that makes it obvious to all reasonable

government actors, in the defendant’s place, that what he is doing violates a federal

4 To receive immunity, the government official ordinarily must first establish that “he was

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

Lee, 284 F.3d at 1194 (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). But

here, Plaintiff does not dispute that Defendants were acting within the scope of their discretionary

authority at all times relevant to the complaint. (Docs. 113 at 6; 20 [J 8-9.)

Page 9 of 27

law.” Jones v. Fransen, 857 F.3d 843, 851-52 (11th Cir. 2017) (cleaned up) (citing

Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)). ““We do not

require a case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12

(2015) (quoting al-Kzdd, 563 U.S. at 741).

The Supreme Court has repeatedly cautioned courts “not to define clearly

established law at a high level of generality.” Jd. “This is because officials are not

obligated to be creative or imaginative in drawing analogies from previously decided

cases, and an official’s awareness of the existence of an abstract right does not equate

to knowledge that his conduct infringes the right.” Corbitt v. Vickers, 929 F.3d 1304,

1311-12 (11th Cir. 2019) (cleaned up) (quoting Coffin v. Brandau, 642 F.3d 999, 1015

(11th Cir. 2011)). “Such specificity is especially important in the Fourth Amendment

context, where the Court has recognized that it is sometimes difficult for an officer

to determine how the relevant legal doctrine ... will apply to the factual situation the

officer confronts.” Mullenix, 577 U.S. at 12 (cleaned up) (quoting Brosseau ».

Haugen, 543 U.S. 194, 198 (2004) (per curzam)). “The relevant, dispositive inquiry

is whether it would be clear to a reasonable officer that the conduct was unlawful in

the situation he confronted.” Saucier □□ Katz, 533 U.S. 194, 194-95 (2001) (citation

omitted). “If the law did not put the officer on notice that his conduct would be

Page 10 of 27

clearly unlawful, summary judgment based on qualified immunity is appropriate.”

Ta.

B. Plaintiff’ s deprivation of life claim is not cognizable under the Fourteenth

Amendment (Count One).

In Count One, Plaintiff asserts a deprivation of life claim under § 1983 and the

due process clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV, § 1

(“[N]or shall any State deprive any person of life, liberty, or property, without due

process of law....”). This Count remains asserted against only Powell as this Court

previously granted a motion by Gilliam to dismiss this Count. (Doc. 67.) Powell

argues that he is entitled to summary judgment on this claim because it may only be

properly asserted under the Fourth Amendment. This Court agrees, and Plaintiff

acknowledges that this claim is duplicative of her Fourth Amendment claims. (See

doc. 113 at 5.)

When a plaintiff asserts an excessive force claim under § 1983, the claim must

“be judged by reference to the specific constitutional standard which governs that

right.” Graham »v. Connor, 490 U.S. 386, 394 (1989). “In most instances, that will be

either the Fourth Amendment’s prohibition against unreasonable seizures of the

person, or the Eighth Amendment’s ban on cruel and unusual punishments, which

are the two primary sources of constitutional protection against physically abusive

governmental conduct.” Jd. at 395. The Supreme Court has explicitly held that “al/

Page 11 of 27

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 should

be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather

than under a ‘substantive due process’ approach.” Jd. (emphasis in original).

Accordingly, Powell is entitled to summary judgment on Count One.

C. Defendants are not liable for failing to intervene in Chief Stephenson’s

plan to enter Wilder’s home to conduct a welfare check (Count Five).

In Count Five, Plaintiff claims that Defendants violated Wilder’s right to be

free from unreasonable searches in failing to prevent the warrantless entry into

Wilder’s apartment. See U.S. CONST. amend. IV (“The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated....”). Defendants contend that exigent

circumstances justified the warrantless entry into Wilder’s apartment, and even if

not, they had no duty to thwart Chief Stephenson’s plan to enter the apartment.

Relevant authority supports both of Defendants’ contentions.

1. Exigent circumstances justified the entry into Wilders apartment.

The Fourth Amendment prohibits an officer’s warrantless entry into a

person’s home, except in certain circumstances. Roberts v. Spielman, 643 F.3d 899,

905 (11th Cir. 2011) (per curtam). One exception to the warrant requirement applies

where □ ‘exigent circumstances’ mandate immediate action.” Jd. (quoting United

Page 12 of 27

States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002)). The “exigent

circumstances” exception applies “where officers reasonably believe a person is in

danger.” Jd. In the context of a mental health welfare check, “the Fourth

Amendment requires the officer to have probable cause to believe the person is

dangerous either to himself or to others.” See zd. (citations omitted); see also Ingram

Kubik, 30 F.4th 1241, 1250 (11th Cir.), cert. dismissed, 142 S. Ct. 2855 (2022)

(requiring a “substantial chance” of “dangerous behavior”’). ‘Probable cause does

not require conclusive evidence and ‘is not a high bar.’” Washington v. Howard, 25

F.4th 891, 899 (11th Cir. 2022) (quoting D.C. v. Wesby, 583 U.S. 48, 57 (2018)).

The Eleventh Circuit has concluded that an officer does not violate the Fourth

Amendment in executing a warrantless entry for the purpose of conducting a welfare

check on a person suspected of suffering a mental health crisis. See Harrison □□

Davidson Hotel Co., LLC, 806 F. App’x 684 (11th Cir. 2020). The officers in

Harrison responded to a call for a wellness check at a hotel. Jd. at 685. When they

arrived, they were told by hotel staff that the plaintiff had been claiming he owned

the hotel and had been timing how long it took for room service orders to arrive. Jd.

at 685-86. One of the officers knocked on the plaintiff’s door, announced he was a

police officer, and asked the plaintiff to come speak with him. Instead of complying,

the plaintiff asked the officers to bring him a drink and to clean his room. Jd. at 686.

Page 13 of 27

A neighboring guest told the officers that he had heard screaming and glass breaking,

and that he did not feel safe in his room. /d. The officers decided to enter the room

“for the safety of [the plaintiff] and anyone else inside.” Jd. Based on the plaintiff’ □

erratic behavior, the court concluded that exigent circumstances justified the

officers’ entry into his room “because the officers reasonably believed his mental

state made him a danger to himself.” See zd. at 688.

In a case strikingly similar to this one, the Supreme Court found “no doubt

that the officers did not violate any federal right” when they entered the plaintiff’s

room without a warrant to conduct a welfare check. See City & Cnty. of San Francisco,

Calif. v. Sheehan, 575 U.S. 600, 612 (2015). There, officers responding to a call for a

welfare check went to the plaintiff’s room, knocked on her door, announced who

they were, and told her that they wanted to help her. Jd. at 604. When they entered

using a key, the plaintiff grabbed a knife and yelled, “I am going to kill you. I don’t

need help. Get out.” Jd. The officers retreated and called for backup. Jd. But because

the officers believed the situation required their immediate attention, they chose to

reenter instead of waiting for backup to arrive. Jd. at 605. While one officer pushed

the door open, the other officer used pepper spray to subdue the plaintiff. Jd. Despite

being pepper sprayed in the face, the plaintiff advanced on the officers and would not

drop her knife. /d. at 605-06. Once she closed the distance to within a few feet, the

Page 14 of 27

officers shot her multiple times. /d. at 606. The Court held unequivocally that the

officers’ conduct was not unconstitutional. /d. at 612.

Here, Sergeant Patterson responded to a disturbance call and, like the officers

in Harrison and Sheehan, knocked on Wilder’s door and announced his authority and

intent to help. After Wilder repeatedly refused to come out or talk, Patterson talked

to his neighbors. He learned that Wilder suffered from mental illness, was not taking

his medication, had been acting erratically, and had previously been institutionalized

after killing somebody. He also learned that there might be someone else in Wilder’s

apartment, and that neighbors were concerned for their safety.° ° Under these facts,

the officers reasonably could have concluded that there was a “substantial chance”

that Wilder would exhibit “dangerous behavior” toward himself or others. See

Ingram, 30 F.Ath at 1250. Thus, there is “no doubt that the officers did not violate

This Court briefly notes that the accuracy of this information is not relevant to the analysis,

absent any evidence that Patterson or the other officers should have doubted it. See Roberts, 643

F.3d at 905 (finding no constitutional violation in a mental health search and seizure where there

was “nothing in the record to suggest [the officer] should have doubted the information” given to

him); Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013) (“What counts ... is the information

known to the defendant officers or officials at the time of their conduct, not the facts known to the

plaintiff then or those known to a court later.’’).

6 Just before the officers attempted entry, Chief Stephenson can be heard on Patterson’s

body camera footage describing what sounds like a call that dispatch received earlier that day from

Wilder threatening to kill his neighbors. (See doc. 107-3 at 49:10-25.) But because this particular

evidence is somewhat ambiguous, and because Defendants failed to offer this fact as undisputed,

the Court does not consider it in determining the existence of probable cause.

Page 15 of 27

any federal right” when they entered Wilder’s apartment without a warrant to

conduct a welfare check. See Sheehan, 575 U.S. at 612.

To argue the contrary, Plaintiff relies on the testimony of her expert witness,

who opined that the entry into Wilder’s apartment was unlawful. This reliance is

misplaced. See Commodores Ent. Corp. v. McClary, 879 F.3d 1114, 1128-29 (11th Cir.

2018) (“[Qluestions of law are not subject to expert testimony.”); United States v.

Duldulao, 87 F 4th 1239, 1269 (11th Cir. 2023) (“Rule 704 bars a witness from giving

legal opinions (e.g., ‘the defendant broke the law’)....”).

But even if the existence of probable cause supporting the initial breach of

Wilder’s door were in doubt, there is no question that exigent circumstances justified

Powell’s and Gilliam’s entry. By the time Powell entered Wilder’s apartment, he

knew that (1) Wilder had a knife that he refused to drop; (2) Wilder was acting

belligerently and not obeying orders; (3) another person potentially was in the

apartment with Wilder; (4) an officer had been tased; and (5) Wilder had been tased.

By the time Gilliam entered, Wilder had been shot. Clearly, by then, Defendants

“reasonably believe[d] a person [was] in danger,” thus giving them probable cause

to enter lawfully without a warrant. Roberts, 643 F.3d at 905. Plaintiff appears to

concede this point. (See doc. 113 at 3-4 (“If one were to view the incident only from

Page 16 of 27

the time the officers broke into the apartment and were allegedly threatened by

Wilder, qualified immunity would protect [Defendants]....”).)

2. Powell and Gilliam had no duty to intervene in the warrantless entry.

Plaintiff claims that Defendants had a legal obligation to intervene and prevent

the other officers’ warrantless entry into Wilder’s apartment. This claim necessarily

fails in that, as explained above, the warrantless entry into Wilder’s apartment was

justified by exigent circumstances. But even assuming the initial entry into Wilder’s

apartment was unconstitutional, this claim still fails. Defendants had no duty to

intervene because they had no reason to believe that they were participating in an

unlawful search and seizure.

Plaintiff cites no cases holding that an officer violates the constitution by

failing to intervene in a warrantless entry.’ She does, however, cite binding authority

holding that an officer may violate the constitution by failing to intervene in an

unlawful arrest. See Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013).

Analogizing the rule pronounced in W2lkerson to the context of warrantless entries,

an officer may be liable for failing to intervene in a warrantless entry if (1) the officer

“sufficiently participated” in the entry; and (2) the officer “knew the [entry] lacked

any constitutional basis and yet participated” anyway. See zd.

7 This, of course, precludes Plaintiff’s ability to satisfy her burden to show that the relevant

law was clearly established, as necessary to overcome qualified immunity.

Page 17 of 27

Given their minimal roles— Powell only knocked on Wilder’s window while

Gilliam merely was present—this Court is doubtful that they “sufficiently

participated” in the warrantless entry. See zd.; Brown v. City of Huntsville, Ala., 608

F.3d 724, 737 (11th Cir. 2010) (“Merely being present with the arresting officers at

the scene is not enough, unless the plaintiff can show that the defendant officer was

part of the chain of command authorizing the arrest action.”). But even “assuming

that [Defendants] sufficiently participated in [the entry], [they] still lacked the

requisite information to put [them] on notice that an unlawful [entry] was occurring

or had occurred.” Wilkerson, 736 F.3d at 980. When they responded to Chief

Stephenson’s call for backup, Defendants knew only what they were told by other

officers, i.e., that there was a “barricaded subject” and possibly another person

inside the apartment. Defendants were “entitled to rely” on this information and to

in any gaps ... with reasonable inferences premised on [the other officers] acting

in aconstitutional manner and in good faith.” /d. They had no duty to investigate the

basis of Stephenson’s plan to execute the warrantless entry. Jd. (citing Jones ».

Cannon, 174 F.3d 1271, 1284-86 (11th Cir. 1999)).

Thus, because Plaintiff can point to no evidence which would have “raise[d]

any obvious concerns as to the existence of probable cause,” Defendants cannot be

held liable for failing to intervene in the warrantless entry. See zd.; cf. Hartsfield v.

Page 18 of 27

Lemacks, 50 F.3d 950, 956 (11th Cir. 1995), as amended (June 14, 1995) (affirming

summary judgment for officers where “nothing in the record indicate[d] that these

officers acted unreasonably in following [another officer’s] lead, or that they knew

or should have known that their conduct might result in a violation of the [plaintiffs’ |

Fourth Amendment rights”); Brent v. Ashley, 247 F.3d 1294, 1306 (11th Cir. 2001)

(“Each of these individuals acted at the order of a superior and the record reflects

no reason why any of them should question the validity of that order. We, therefore,

affirm the district court’s grant of qualified immunity....”); accord White v. Goforth,

No. 22-5409, 2023 WL 3546527, at *5 (6th Cir. May 18, 2023) (“[W]ithout

knowledge of the underlying constitutional violation, [the defendant officer] cannot

be liable for failing to stop it.”); Vela v. White, 703 F.2d 147, 152 (5th Cir. 1983) (per

curtam) (‘Under the circumstances of this case, it would not be fair to force [the

defendant officer] to either violate a direct order or else stop and interrogate [his

superior] as to the reasons for his order, at the risk of being held liable for damages

for an unlawful arrest.”).

This result makes sense both logically and practically. As then-District Judge

Brasher explained, there is a vast ocean of consequence between requiring an officer

to intervene in an excessive use of force and requiring an officer to investigate the

basis for another officer’s arrest—or, in this case, warrantless entry:

Page 19 of 27

It is one thing to require a police officer to stop his partner from hitting

someone with a baton. It is another to require that every officer on the

street actively inquire as to the constitutional merits and predicate of

each seizure by other officers, and then countermand seizures they

believe are unreasonable. It would effectively conscript every police

officer to play the role of internal affairs as well as peacekeeper.

Stallworth »v. Hurst, No. 2:18-CV-1005-ALB-SRW, 2019 WL 5070196, at *2 (M.D.

Ala. Oct. 8, 2019) (Brasher, J.).

Accordingly, Defendants are entitled to summary judgment on Count Five.

D. Defendants are not liable for failing to intervene in the other officers’ use

of force against Wilder (Counts Two and Three).

In Counts Two and Three, Plaintiff contends that law enforcement officers

used excessive force when they tased and shot Wilder. Because Defendants did not

themselves apply any force to Wilder, Plaintiff argues instead that they are liable for

failing to intervene. She appears to advance two different theories in support of this

argument. Both fail.

First, Plaintiff contends that, because the officers lacked a constitutional basis

to enter Wilder’s home, any use of force was necessarily excessive. This argument

fails outright under the very opinion that Plaintiff cites as authority. See Jackson ».

Sauls, 206 F.3d 1156 (11th Cir. 2000). Jackson confirms that “if a stop or arrest is

illegal, then there is no basis for any threat or any use of force,” and therefore any

use of force would be presumptively excessive. See zd. at 1171. But such a claim is

viable only as an unlawful arrest claim, not as an excessive force claim. Jd. (“Under

Page 20 of 27

this Circuit’s law, however, a claim that any force in an illegal stop or arrest is

excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive

force claim.”); Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1332 (11th Cir. 2006)

(concluding that the plaintiff’s excessive force claim “fail[ed] as a matter of law”

because it was “entirely derivative of, and [] subsumed within, the unlawful arrest

claim”). Moreover, even if this Court considered these claims discretely, they would

fail: as explained above, there was no unlawful entry.

Second, to the extent Plaintiff argues that—assuming the entry was lawful—

Defendants are liable for failing to intervene in the other officers’ use of allegedly

excessive force, her claims still fail. An officer can be held liable under § 1983 if he

“had the opportunity to intervene in [another officer’s] use of excessive force and

[yet] failed to do so.” Priester, 208 F.3d at 925. Here, Defendants argue that Plaintiff

fails to establish either that the force used was excessive under the circumstances or

that Defendants had the opportunity to intervene. This Court agrees.

Plaintiff offers no rebuttal to Defendants’ argument that they had no

opportunity to intervene in the other officers’ use of force. The Court agrees with

Defendants that there is no evidence to suggest they could have prevented Wilder

from being shot in response to his advancing with a knife on the officers pinned by a

table—Gilliam was not even in the room when the shots were fired. Cf Riley ».

Page 21 of 27

Newton, 94 F.3d 632, 635 (11th Cir. 1996). There is, however, some evidence that

Defendants could have prevented Wilder from being tased. Various officers made

several unsuccessful attempts to tase Wilder, the first of which occurred about one

minute and forty-five seconds before he was successfully tased. A reasonable jury

could conclude from this that Defendants could have anticipated and prevented the

successful tasing of Wilder. See Priester, 208 F.3d at 924-25 (reversing where the

district court granted qualified immunity based on evidence that the defendant

officer had no opportunity to intervene in a police dog attack that “lasted for only 5

or 10 seconds,” but where other evidence indicated that the attack might have lasted

as long as two minutes). But this finding is inconsequential here because the use of

tasers was not an excessive use of force under the circumstances. As such, there is

no basis to hold Defendants liable for failing to intervene. See Jackson, 206 F.3d at

1174 (“Since Pinckney is entitled to qualified immunity on his use of deadly force,

there is no derivative claim against Fields.”’).

“A determination that an officer used excessive force requires careful

attention to the facts and circumstances of each particular case while recognizing

that the right to make an arrest necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.” Ingram, 30 F.4th at 1251 (cleaned

up) (citing Graham, 490 U.S. at 396). The excessive force framework set forth in

Page 22 of 27

Graham, which asks whether the degree of force used was reasonable under the

circumstances, applies to mental health seizures “even though they do not involve a

criminal arrest.” See zd. (cleaned up) (citing Mercado v. City of Orlando, 407 F.3d

1152, 1157-58 (11th Cir. 2005)). The Eleventh Circuit has consistently held that “the

use of a taser gun to subdue a suspect who has repeatedly ignored police instructions

and continues to act belligerently toward police is not excessive force.” Smith v.

LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (quoting Zvojinovich v. Barner, 525 F.3d

1059, 1073 (11th Cir. 2008)). This was such a situation. Cf Zzvojinovich, 525 F.3d at

1071, 1073 (affirming summary judgment on an excessive force claim where an officer

tased a belligerent suspect who was handcuffed and being led to a patrol car).

Rather than rebut Defendants’ assertion that each use of force on Wilder was

justified in the moment of its use, Plaintiff maintains that any use of force against

Wilder was excessive because it could have been avoided had the officers simply left

him alone. (See doc. 113 at 7-9.) Plaintiff again relies on the opinions of experts to

reach this conclusion, and again that reliance is misplaced. The Supreme Court has

held that “so long as a reasonable officer could have believed that his conduct was

justified, a plaintiff cannot avoid summary judgment by simply producing an expert’s

report that an officer’s conduct leading up to a deadly confrontation was imprudent,

inappropriate, or even reckless.” Sheehan, 575 U.S. at 616-17 (cleaned up) (citation

Page 23 of 27

omitted). Thus, ‘“‘even if [Powell] and [Gilliam] misjudged the situation, [Plaintiff]

cannot establish a Fourth Amendment violation based merely on bad tactics that

result in a deadly confrontation that could have been avoided.” Jd. at 615 (citation

and quotation marks omitted); Garczynski v. Bradshaw, 573 F.3d 1158, 1167 (11th Cir.

2009) (“Our task is not to evaluate what the officers could or should have done in

hindsight.’’).

Accordingly, Defendants are entitled to summary judgment on Counts Two

and Three.

E. Plaintiff fails to show that clearly established law gave Defendants fair

warning that their conduct was unlawful (Counts Two, Three, and Five).

Even if Defendants violated Wilder’s constitutional rights, they are

nonetheless entitled to summary judgment unless Plaintiff shows they violated

clearly established law. She makes no such showing.

Plaintiff cites no existing precedent placing the constitutional questions before

this Court “beyond debate.” Mullenzx, 577 U.S. at 12. Instead, she plainly concedes

that the question of Defendants’ liability ‘“‘is certainly debatable.” (Doc. 113 at 8.)

And although Plaintiff cites opinions arguably supporting her claims in the abstract,

she offers no materially similar cases giving Defendants “fair warning that their

alleged conduct was unconstitutional.” Washington, 939 F.3d at 1245. Especially in

the context of Fourth Amendment claims, this is insufficient to meet her burden to

Page 24 of 27

overcome Defendants’ entitlement to qualified immunity. See Priester, 208 F.3d at

927 (“In the context of Fourth Amendment excessive force claims, we have noted

that generally no bright line exists for identifying when force is excessive; we have

therefore concluded that unless a controlling and materially similar case declares the

official’s conduct unconstitutional, a defendant is usually entitled to qualified

immunity.”). Rather than show the governing law to be clearly established, much of

the authority Plaintiff cites refutes her claims instead.

Accordingly, Defendants are entitled to summary judgment on Counts Two,

Three, and Five.

F. State-agent immunity shields Defendants from Plaintiff's state-law

claims (Counts Six and Seven).

Counts Six and Seven allege state-law wrongful death claims premised on the

same theories of allegedly unconstitutional acts and omissions that this Court has

rejected. For the same reasons that Plaintiff’s § 1983 claims fail, so too her state-law

claims fail.? Alternatively, Defendants are entitled to state-agent immunity.

8 The Court notes that this may not be true in every case. But Defendants argue

convincingly—citing relevant facts and applicable law—that it is true here. And Plaintiff fails to

address these arguments in her response. Federal courts frequently treat a plaintiff’s failure to

respond to arguments supporting the dismissal of a claim as an abandonment of that claim. See,

Whitehurst v. Harris, No. 6:14-CV-01602-LSC, 2015 WL 71780, at *7 (N.D. Ala. Jan. 6, 2015)

(“Refusing to acknowledge a contested claim in a response brief is a ground for dismissal.” (citing

Coal. for the Abolition of Maryuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1325-26 (11th Cir.

2000) (noting that an appellant’s “failure to brief and argue [an] issue during the proceedings

before the district court is grounds for finding the issue abandoned”))); Hamilton v. Southland

Page 25 of 27

Under Alabama law, law enforcement officers are immune from tort liability

arising from discretionary acts performed in the line of duty. Moore v. Crocker, 852

So. 2d 89, 90 (Ala. 2002). State-agent immunity does not apply, however, where an

officer “acts willfully, maliciously, fraudulently, in bad faith, beyond his or her

authority, or under a mistaken interpretation of the law.” /d. at 91 (emphasis

omitted) (quoting Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). The plaintiff

bears the burden of showing that one of these exceptions applies. Ex parte Est. of

Reynolds, 946 So. 2d 450, 452 (Ala. 2006). Here, Plaintiff does not even attempt to

show that one of these exceptions applies. (See generally doc. 113.) Thus, Defendants

are immune from her state-law claims. See zd.

Accordingly, Defendants are entitled to summary judgment on Counts Six and

Seven.

IV. CONCLUSION

For the reasons discussed above, Defendants’ motion for summary judgment

is due to be GRANTED and Plaintiff’s motion for summary judgment is due to be

DENIED. The Court will enter an Order consistent with this Opinion.

DONE ORDERED ON APRIL 8, 2024.

Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and

cite authorities in support of an issue waives it.” (citing Singh v. U.S. Att’y Gen., 561 F.3d 1275,

1278 (11th Cir.2009) (per curiam))).

Page 26 of 27

L. SCOTT Ce

UNITED STATES DIS¥RICT JUDGE

215647

Page 27 of 27