Opposition Brief — Willingham v. Loughnan
Supreme Court brief2003
Ask Donna
What actually matters in this document.
Text
No. 02-1694
O° =a
| JUN 1 7 2003
In The
Supreme Court of the Anited States
,
v
BETTY WILLINGHAM,
Petitioner,
V.
JAMES LOUGHNAN AND BRIAN BUECLER,
Respondents.
ee
vy
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
+
RESPONDENTS’ BRIEF IN OPPOSITION
,
Vv
GEORGE P. ROBERTS, JR., ESQ.
Counsel of Record
ROBERTS & REYNOLDS P.A.
470 Columbia Drive, Ste. 101C
West Palm Beach, FL 33409
561-688-6560
Counsel for Respondents
James Loughnan & Brian Buecler
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831 ;
QUESTIONS PRESENTED FOR REVIEW
Whether reliance by the Court of Appeals upon prece-
dential authority of this Court, its own decisions and
that of the state supreme court to determine clearly
established constitutional rights or law conflicts with
a persuasive, contrary consensus of the other Courts
of Appeals to defeat the officers’ entitlement to quali-
fied immunity?
Whether an interlocutory appeal affirming a denial of
a state official’s claim to qualified immunity because
of a dispute of material facts constitutes the “law-of-
the-case” that precludes further consideration of their
claim at trial or vpon subsequent appeal post-trial?
il
TABLE OF CONTENTS
Page
Questions Presented for Review ...........:cssssseecereeeeeees i
Tallole of Gam... occsccisecsnsscvesenssceossnsiesvecnucansicsessisase ii
Table of Amthoritaes .....cccessssessessvecnsscescsseesonsoozceszneness ili
Statement Of the CaVKS ...ccccsrsseocccssessevssvancoecevesnerensnes 1
Reasons for Denying the WYit.............:cccseeesseeeeeeeeees 4
Din, .:te:icsnisesssceinesiiunicccisamsestaseuniaimaianngiumancanacate 4
I. The questions presented were not properly
Preserved for TEVICW .............cssccrccerecseresesssecees 5
-II. The decision of the Court of Appeals after
remand does not conflict with this Court’s de-
cisions, its own precedent, nor a consensus of
persuasive authority of the Courts of Appeals
ts Tale FI a icciccsnsinnisineaseisnciiniicnaiainitienniaienincndamentaaaiinion 6
III]. The law-of-the-case doctrine has not been
rejected by the Court of Appeals in qualified
immunity cases, nor are the other circuits’
views to the contrary; it simply was not appli-
cable to the decision below ......... .....ssssseeeseeeeeees 22
Cm asic ccvcisnhcinbciiamcieneaamaamaaadh 29
ili
TABLE OF AUTHORITIES
Page
CASES
Amaechi v. West, 237 F.3d 356 (4th Cir. 2001) .................. 19
Anderson v. Creighton, 483 U.S. 635 SEE Rees 10
Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)..............6.. 16
Barts v. Joyner, 865 F.2d 1187 (11th Cir.), cert.
denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d
Nao dicicias laid Sapansbionenpubbdsianesiawnbeaissennienvesensines 17
Behrens v. Pelletier, 516 U.S. 299 (1996)...........cecceeeeeeeeees 29
California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1
I isdn catcinedtsinbieentacioniinnniiiericiseneness 6
Capoeman v. Reed, 754 F.2d 1512 (9th Cir. 1985)............. 18
City of Springfield, Mass. v. Kibbe, 480 U.S. 257,
107 S.Ct. 1114, 94 L.Ed.2d 293 (1987)................cssceeseeeee 5
Clark v. Beville, 730 F.2d 739 (11th Cir. 1984)...............64. 11
Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002).................. 14
County of Sacramento v. Lewis, 523 U.S. 833, 118
S.Ct. 1708, 140 L.Ed.2d 1043 (1998) .................ceee00 ae
Donovan v. City of Milwaukee, 17 F.3d 944 (7th Cir.
a a ia ola anesadisinndsladebeninenaphnetneensaierome 17
Elliot v. Leavitt, 99 F.3d 640 (4th Cir. 1996), peti-
tion for reh’g en banc denied, 105 F.3d 174 (1997)........ 21
Forrett v. Richardson, 112 F.3d 416 (9th Cir. 1997).......... 21
Franklin v. County of Riverside, 971 F.Supp. 1332
ts snccadunhhaanbiavarewbinmnstibobubsbanivocsuvencene 12
Fundiller v. City of Cooper City, 777 F.2d 1436
I i chad banmanoniiineduhnimbaieniabhaoentes 11
iv
TABLE OF AUTHORITIES — Continued
Page
Garcia by Garcia v. Miera, 817 F.2d 650 (10th Cir.
BOTY vicexicseisevecsevtesceteteeaiarisermnsiindptaeasananirnynnint 18
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)............see0 6
Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.
TI ov esivnnnitesornienienesovsacpevovestensnerepueiannieeenrcnnnumesatenriseusvets 11
Graham v. Connor, 109 S.Ct. 1865 (1989).........cssseeserees 23
Haddaway v. Ellerbusch, 996 F.2d 1211, 1993 WL
238997 (4th Cir. June 30, 1998)............cccccesceereeeeseeeeeeees 14
Hamilton v. Lyons, 74 F.3d 99 (5th Cir. 1996)..........see 12
Harrell v. Decatur County, Ga., 41 F.3d 1494 (11th
Cir. 1995), vacating and adopting dissent in 22
F.3d 1570 (11th Cir. 1994)...........sccccccccccrrecssssccsceesoees 21
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364,
129 L.Ed. 2d 383 (1994) .........cccccccccccrccrscsccssscerseseeeees 12
Hegarty v. Somerset County, 53 F.3d 1367 (1st. Cir.
1995), cert. denied, 516 U.S. 1029, 1165 S.Ct.
675, 183 L.Ed.2d 524 (1995) .........sccsesseesseesreereeereeeeeeees 21
Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475,
126 L.Ed. 2d 22 (19DS) .cc.rccsoriccscrcrccsccsvvesvcrecccnessescscensneeee 16
Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508
I cctv A srinncicsitiinpcinnnnanneitenpniieintapivian 3, 6, 7, 22, 29
Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996).............+++ 12
In re City of Philadelphia, 158 F.3d 711 (3d Cir.
RO so iavctacsnicnctnintncsdhitpiniuenacstmmanainen 26, 28, 29
Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132
1 Wid. Bek SOG CABO oi viceresisnsiivccevesccecrncsctsyecancnssecnvsncceyes 24, 27
Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994)............s0000+ 26
Vv
TABLE OF AUTHORITIES — Continued
Page
Killian v. City of Riverview, 98 F.3d 1342 (6th Cir.
SIO. ssissintiiaibncceeishsninarstsinisca snasitechiadincasniaacilieaapababiastactein 12
Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 2000)........ 28
Lassiter v. Alabama A&M University, 28 F.3d 1146
CET EO SD siissciinsnsins ciccienssonesntanciiccsoctsssssnnannsonsisial 10
Marsh v. Butler County, Ala., 268 F.3d 1014 (11th
Cie, BOG 1) Gale GRE) vvisiiscisicissniavinvesincioneceteven etait 8,9
McClendon v. City-of Columbia, 305 F.3d 314 (5th
Cir. 2002), cert. denied, 123 S.Ct. 1355 (2008) ........ 16, 17
~ McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996).....27, 28, 29
McKinney v. DeKalb County, 997 F.2d 1440 (11th
Cie BOD) wis viicivcsncttnessccsécsntnnienticceecenteiettcabennaancdnies 11
Menuel v. City of Atlanta, 25 F.3d 990 (11th Cir.
iss nivnicnscsndeiciccvechibinvulinnctecicnahetiadsamnamiimmnaessmail 22
Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997) ............... 21
Nelson v. County of Wright, 162 F.3d 986 (8th Cir.
SO isch chess sncitarinsyninitinniniaacetnionciniaiianiineiaanmeanmnliaies 21
Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d
yee fee) Sr ener 17
Oladiende v. City of Birmingham, 230 F.3d 1275
CUR Gia Cae BI sickness cinta eiintiisenns 25, 26
Ort v. White, 813 F.2d 318 (11th Cir. 1987) ..............ccseeeeee 7
Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)..............0 22
Poe v. Leonard, 282 F.3d 123 (2nd Cir. 2002)............0+0+ 15
Priester v. City of Riviera Beach, 208 F.3d 919 (11th
Ce I veccineiccsacecscsinnssonennnenicrbvaktieeninnihiahammaeminansatintee 10
Riley v. Camp, 130 F.3d 958 (11th Cir. 1997).............s0000 25
Ne ey
vi
TABLE OF AUTHORITIES — Continued
Page
Roy v. Inhabitants of Lewiston, 42 F.3d 691 (1st Cir.
1994)......cccccccosscsesccsssccssccsscsssecesssssscsonsscecensessensnossees 7, 8, 21
Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.
1988)........+. ~ a 11
Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150
__L.Ed.2d 272 (DOO1) ..csoceecocsssesssnssonssosesnavesneesennres 5, 7, 8, 10
Sims v. Metropolitan Dade County, 972 F.2d 1230
(L1th Cir, 1992)..........ssccccesesseseeessssessenensenssnerseressensncnens 27
Skurstenis v. Jones, 236 F.3d 678 (11th Cir. |: ne 18
St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir.
1995)... icccccssccccsssccsorssssossescssssccsssnssersccossosssssasssescsnsensensonses 21
Tennesse v. Garner, 471 U.S. 1 (1985) .....s.-sesseseeeeees 11, 15
Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2009)....... 13, 14
Tinetti v. Wittke, 479 F.Supp. 486 (E.D. Wis. | eee 18
Tribble v. Gardner, 860 F.2d 321 (9th Cir. a iiicisecicssnies 18
Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001), cert.
denied, 123 S.Ct. 621 (2002) .........escereserereeereeresenesrersens 19
U.S. v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997)......8, 10
Varrone v. Billoti, 123 F.3d 75 (2nd Cir. DEE sssiasntenesconins 15
Vaughan v. Cox, 264 F.3d 1027 (11th Cir. 2001).............++ 14
Vaughan v. Cox, 316 F.3d 1210 (11th Cir.-2003).......... 14, 15
Vazquez v. Metropolitan Dade County, 968 F.2d
1101 (11th Cir. 1992).........csssseseesreseeeereereessssesersesesnees 11
Villano v. City of Boynton Beach, 254 F.3d 1302
(L1th Cir, 2001)..........cssescssssssesssssereeserensnnenssssrseceesnsncenees 24
Ward v. San Diego County, 791 F.2d 1329 (9th Cir.
1986)......ccccccccccorssssssssccsscserscceerenscorescnsserenseacscesonsensenseees 18
Vii
TABLE OF AUTHORITIES — Continued
Page
Weber v. Dell, 804 F.2d 796 (2nd Cir. 1986)..........:seeeesees 15
Webster v. City of Houston, 689 F.2d 1220 (5th Cir.
VOBD).......o+svecrovsireccossseccsresensenssvocosonersvonsseosvonaseonsonesseees 12,13
Wheeler v. City of Pleasant Grove, 746 F.2d 1437
(11th Cir. 1984)................ccccesssrserees caiman 26
Willingham v. Loughnan, 261 F.3d 1178 (11th Cir.
QOO1)....0.ccrreresccccosesevssescsessseccsoncovensesssssssenssononsessoonsesensenes 23
Willingham v. Loughnan, 321 F.3d 1299 (11th Cir.
| ee - sinsabadecsecensdliSbeniedwiaabetienunnsaasbonmmennsoehte 11
Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692
(1999).......cscccccsssrccccsscssssecsesseeseesssecessssseseesnaseesenenees passim
Wright v. Smith, 21 F.3d 496 (2nd Cir. 1994).......ssssssse0 15
Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992
(1975) ....ecesccscsscerccssscssesecssccssveesseeserenssesscssonenccenssensenssore® 14
CONSTITUTIONS
U.S. Const. amend. I.............cssssssereseeessesenreeeeeseeeessenseeonnees 28
US. Const. amen. IV ...........c.csccseeseeeeesesssnnneneeeeeeeeeeees 21, 29
U.S. Const. amend. VIII .............ccccceeeeeeeeeeeseeeneeeeeneees 6, 7, 16
US. Const. amend. XIV............:ccseccceessssesessenereeeeeeeseneenaess 16
1
RESPONDENTS LOUGHNAN & BUECLER’S BRIEF
IN OPPOSITION TO PETITIONER WILLINGHAM’S
SECOND PETITION FOR WRIT OF CERTIORARI
STATEMENT OF THE CASE
On October 7, 1987, just before midnight, Petitioner
Betty Willingham, was simultaneously shot by Boynton
Beach, Palm Beach County, Florida police Officers James
Loughnan and Brian Buecler after having committed a
battery on Officer Loughnan and within a split-second of
having attempted to murder Officer Ron Panucci, who was
attempting to arrest her brother, Arnold Sims.
According to the officers, who testified at her criminal
and civil trial, she had a long blade kitchen knife in her
hand and was attempting to stab Panucci in the back at
the time she was shot. An independent witness testified at
both trials that she was on the step outside her house with
an object in her hand at the time she was shot. Willingham
claimed that she was standing in the doorway, pulling her
hair at the time she was shot. Her version of the events was
rejected when she was convicted in June 1989 of both crimes
by the Palm Beach County criminal court jury, a conviction
that was neither appealed nor vatated.
In 1990, Willingham sued the City of Boynton Beach,
its police chief Edward Hillery and Officers James Lough-
~ nan and Brian Buecler. After the officers moved for sum-
mary judgment on the sole state law claims against them
in 1992, Plaintiff amended her complaint to bring federal
2
civil rights claims against them. The officer’s summary
judgment on the state law claims was denied in 1993."
The officers moved for summary judgment on the federal
claim of excessive force in 1995, asserting qualified immu-
nity. In 1996, the District Court denied the motion finding
that there was a factual dispute not specified in the order
and upon the misapprehension that there had been a previ-
ous denial of the motion. The officers took an interlocutory
appeal to the Eleventh Circuit. Petitioner’s motion to dismiss
the appeal as frivolous was denied and a stay order denied
by the District Court was granted by the Court of Appeals.
In September 1997, the Court of Appeals, in an
unpublished opinion, affirmed the denial of the motion for
summary judgment due to the claimed factual dispute of
whether Plaintiff was doing nothing at the time she was
shot or was attempting to murder an officer. In the panel’s
view, the issue preclusion argument on Petitioner’s crimi-
nal convictions was not properly presented for review.
After the District Court again denied the officers
motions for judgment on qualified immunity at trial and
post-trial, a timely appeal was lodged in the Court of
Appeals of the 5.5 million dollar verdict rendered against
the officers by a jury in Miami-Dade County.’ Upon review
of the entire record, including the criminal trial transcript
and proceedings (as had the District Court when it decided
* These claims were eventually dropped by Plaintiff at the com-
mencement of trial.
* The judgment against the City of Boynton Beach for five million
dollars was set aside by the District Court and affirmed on appeal.
Petitioner did not seek review of that decision in her first petition for
writ of certiorari.
3
the officers’ post-trial motion for judgment) the Court of
Appeals properly found that the criminal conviction at a
minimum established that Plaintiff was shot within a “split-
second” of having attempted to murder one police officer and
battering another and was not restrained and potentially in
a position to continue her assaults on the police.
Finding that it was not clearly established in 1987
that the use of force by these officers under the circum-
stances presented to them was unlawful, and that there
existed a number of decisions both before and subsequent
to the incident, under materially similar circumstances,
holding that such conduct was lawful, the court deter-
mined that qualified immunity was applicable to bar the
Petitioner’s Fourth Amendment claim against the officers.
Petitioner’s suggestion for rehearing en banc was
denied as a motion for rehearing by the panel. No request
was made by a judge of the court to poll the judges on the
suggestion of rehearing en banc.
A petition for writ of certiorari was timely filed with
this court to hold the case pending this Court’s decision in
Hope v. Pelzer.* A brief in opposition was filed. Without
further briefing, after a decision was rendered in Hope,
this Court entered an order granting certiorari, vacating
the decision of the Court of Appeals and remanding for
reconsideration in light of Hope.
The Court of Appeals requested supplemental briefs
from the parties on the issue of reconsideration of the
decision in light of Hope. The parties timely filed briefs.
The Court of Appeals rendered its reconsidered opinion
* 536 U.S. 730, 122 S.Ct. 2508 (2002).
4
finding that the officers were still entitled to qualified
immunity. [Pet. App. A]. 3
Without moving for a rehearing en banc in the Court
of Appeals, Petitioner timely filed her second i omnes for
writ of certiorari with this Court.
REASONS FOR DENYING THE WRIT
PREFACE
The first question presented, whether the Court of
Appeal’s reliance upon only the Constitution, prior decisional
law of this Court, the Court of Appeals and the state su-
preme court, a position allegedly contrary to the other Courts
of Appeals, is raised for the first time in this petition.*
The second question presented, whether the law-of-
the-case doctrine in deciding succeeding appeals on quali-
fied immunity, has been rejected by the Court of Appeals,
contrary to the view of the other Courts of Appeals, is also
first raised in this petition. The contention that the Court
of Appeals failed to follow its own precedent on the issue
was first previously raised in the first petition for writ of
certiorari. This latter issue was not specified as an issue
for reconsideration upon remand.
\
‘ The first “question presented for review” initially [Pet. at i]
differs from the questions described in the table of contents [Pet. at iii]
and the headings in “reasons for granting the writ.” [Pet. at 7]. The
latter description of the questions presented will be addressed herein.
5
I. The questions presented were not properly
preserved for review.
Neither question or issue was timely pressed or
considered by the courts below. In the Court of Appeals,
Petitioner’s response brief to the initial appeal, made no
argument, nor cited any case in support of the proposition
that there was precedent prior to 1987 that gave fair and
clear warning to a reasonable officer that his conduct
under these circumstances presented to him would violate
constitutional law.
Petitioner’s focus, in her initial response, was that
there was no qualified immunity in an excessive force
claim. However, that contention was rejected by this Court
in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150
L.Ed.2d 272 (2001).
Upon remand from this Court for reconsideration, in her
supplemental brief, Petitioner did not cite to any consensus
of persuasive authority from the other Courts of Appeals that
should have been considered to have given fair warning to
the officers that their conduct in October 1987 violated
clearly established law. [Resp. App. A].
Contrary to the invitation for supplemental briefing,
Petitioner did raise the law-of-the-case argument in her
supplemental brief. However, no argument was made that
the position of the Court of Appeals was different from the
other Courts of Appeals or that there was a consensus of
persuasive authority that should have been followed.
Thus, certiorari should not be granted because the
issues presented for review were neither timely presented
nor considered in the Court of Appeals or the District
Court. City of Springfield, Mass. v. Kibbe, 480 U.S. 257,
259, 107 S.Ct. 1114, 1115, 94 L.Ed.2d 293 (1987) (“We
6
ordinarily will not decide questions not raised or litigated in
the lower courts. See California v. Taylor, 353 U.S. 553, 556,
n. 2, 77 S.Ct. 1037, 1039, n. 2, 1 L.Ed.2d 1034 (1957)”).
Il. The decision of the Court of Appeals after
remand does not conflict with this Court’s de-
cisions, its own precedent, nor a consensus of
persuasive authority of the Courts of Appeals
on the issue.
A. No conflict with Hope.
Initially, it is instructive to note that in Hope v. Pelzer,
530 U.S. 730, 122 S.Ct. 2508 (2002), qualified immunity
was denied because this Court found that there was
preexisting precedent in the Court of Appeals that gave clear
and fair warning that the officers’ conduct, as shown by the
facts alleged, violated the Eighth Amendment proscription
against cruel and unusual punishment. This Court con-
cluded that Gates v. Collier, 501 F2d 1291 (5th Cir. 197 4)
was controlling precedential authority since there was not a
significant difference between handcuffing prisoners to a
fence and handcuffing them to a post. As this Court noted:
Cases decided by the Court of Appeals for the
Fifth Circuit before 1981 are binding precedent
in the Eleventh Circuit today. See Bonner v.
Prichard, 661 F.2d 1206 (C.A.11 1981). In one of
those cases, decided in 1974, the Court of Ap-
peals reviewed a District Court decision finding a
number of constitutional violations in the ad-
ministration of Mississippis prisons. Gates v.
Collier, 501 F.2d 1291.
Hope, 530 U.S. at 742, 122 S.Ct at 2516. This Court
specifically noted that “[i]n light of Gates, the unlawful-
ness of the alleged conduct should have been apparent to
the respondents.” Id. at 743.
7
This Court then added that “[t]he reasoning, though
not the holding, in a case decided by the Eleventh Circuit
in 1987 sent the same message to reasonable officers in
that Circuit.” Id. In Ort v. White, 813 F.2d 318 (11th Cir.
1987), this Court felt that the basic premise of depriving
prisoners of necessities, such as drinking water, as punish-
ment was established as violative of the Eighth Amendment.
This Court even held that a number of contrary
“unreported” Alabama District Court decisions should
have been disregarded, because they were “distinguishable
on their own terms ... [and] no match for the Circuit
precedents.” Hope at 747.
This Court did not look to “a consensus of persuasive
authority” of the Courts of Appeals to determine whether
fair warning was provided to the officers in the circuit. The
focus was clearly limited to binding precedent in the Elev-
enth Circuit. Petitioner must have reached this same under-
standing because she did not argue to the contrary in her
supplemental brief upon reconsideration. [Resp. App. A.].
The holding of the Court of Appeals below is not
contrary to the decisions of this Court. In Saucier v. Katz,
533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272
(2001), this Court observed that the general rule that
officers may not use unreasonable force when making an
arrest can only provide concrete guidance when it is made
specific in particular cases. Additionally it was re-
emphasized that “lelxcessive force claims, like most other
Fourth Amendment issues, are evaluated for objective
reasonableness based upon the information the officers
had when the conduct occurred.” Id., 533 U.S. at 207.
In Saucier, citation was made to Roy v. Inhabitants of
Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). Therein, the
District Court properly granted summary judgment for the
8
defendant police officer who shot an armed, intoxicated,
belligerently behaving arrestee. Ray stated:
The Supreme Court intends to surround the po-
lice who make these on-the-spot choices in dan-
gerous situations with a fairly wide zone of
protection in close cases. Decisions from this cir-
cuit and other circuits are consistent with that
view. And in close cases, a jury does not auto-
matically get to second-guess these life and death
decisions, even though the plaintiff has an expert
and a plausible claim that the situation could
better have been handled differently. 42 F.3d, at
695 (footnote omitted).
Saucier, 533 U.S., at 216, fn. 6, Ginsburg, J. concurring.
Moreover, The Court of Appeals has not ignored U.S.
v. Lanier, 520 U.S. 259, 117 S.Ct. 1219 (1997). In Marsh v.
Butler County, Ala., 268 F.3d 1014, 1032-1033, (11th Cir.
2001) (en banc), the court addressed issues raised by
Lanier. In note 9, the court noted:
We acknowledge that preexisting case law, tied to
the precise facts, is not in every situation essen-
tial to establish clearly the law applying to the
circumstances facing a public official so that a
reasonable official would be put on fair and clear
notice that specific conduct would be unlawful in
the faced, specific circumstances. See United
States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219,
1227, 187 L.Ed.2d 482 (1997) (“[A] general con-
stitutional rule already identified in the deci-
sional law may apply with obvious clarity to the
specific conduct in question.”) (discussing 18
U.S.C. § 242); Lassiter, 28 F.3d at 1150 n. 4 (leav-
ing open possibility that “occasionally the words
of a federal statute or federal constitutional pro-
vision will be specific enough to establish the law
applicable to particular circumstances clearly
9
and to overcome qualified immunity even in the
absence of case law”);
Some general statements of law are capable of
giving fair and clear warning in some circum-
stances: the occasional “obvious clarity” cases per
Lanier. But in other cases, as Lanier says, “a
very high degree of prior factual particularity
may be necessary.” 117 S.Ct. at 1227. Especially
where the applicable legal standard is a highly
general one, such as “to act reasonably” or “to act
with probable cause,” preexisting case law, that
has applied the general law to specific circum-
stances, will almost always be necessary to draw
the bright line that is capable of honestly giving
fair and clear notice that an official’s conduct will
violate federal law. See Anderson, 107 S.Ct. at 3040
(noting that pertinent qualified immunity question
in probable-cause case is “fact-specific” question of
whether a reasonable official could have believed,
in light of clearly established law, that official’s be-
havior was lawful under circumstances).
See also Saucier v. Katz, 533 U.S. 194, 121 S.Ct.
2151, 2156, 150 L.Ed.2d 272 (2001) (“This in-
quiry [whether a legal right was already clearly
established], it is vital to note, must be under-
taken in light of the specific context of the case,
not as a broad general proposition”); Wilson v.
Layne, 526 U.S. 603, 119 S.Ct. 1692, 1699-1700,
143 L.Ed.2d 818 (1999) (saying “the right alleg-
edly violated must be defined at the appropriate
level of specificity. . . . ”).
Marsh, 268 F.3d at 1032-1033.
Clearly, the Court of Appeals has found that
“‘olecasionally the words of a federal statute or federal
10
constitutional provision will be specific enough to establish
law applicable to particular circumstances clearly and to |
overcome qualified immunity even in the absence of case
law.” Lassiter v. Alabama A&M University, 28 F.3d 1146,
1150 n. 4 (11th Cir. 1994). As recognized in Marsh, the
Court of Appeals has held that an official may stray Aso
far beyond the hazy border between constitutional and
unconstitutional conduct” that the official “had to know he
was violating the Constitution even without case law on
point.” Priester v. City of Riviera Beach, 208 F.3d 919, 926
(11th Cir. 2000) (quoting Smith v. Mattox, 127 F.3d 1416,
1419 (11th Cir. 1997)). Id., 268 F.3d at 1032.
This view of the Court of Appeals was noted in Saucier
v. Katz, supra, “Qualified immunity operates in this case,
then, just as it does in others, to protect officers from the
sometimes ‘hazy border between excessive and acceptable
force,’ Priester v. Riviera Beach, 208 F.3d 919, 926-927
(C.A.11 2000), and to ensure that before they are subjected
to suit, officers are on notice their conduct is unlawful.”
Saucier, 533 U.S. at 206.
Moreover, in Wilson v. Layne, 526 U.S. 603, 119 S.Ct.
1692 (1999), decided two years after Lanier, this Court
found the principles of Anderson v. Creighton, 483 U.S.
635, 639-640 (1987), still controlling:
In Anderson, we explained that what “clearly es-
tablished” means in this context depends largely
“upon the level of generality at which the rele-
vant ‘legal rule’ is to be identified.” 483 U.S. at
639, 107 S.Ct. 3034. “[C]learly established” for
purposes of qualified immunity means that “[t]he
contours of the right must be sufficiently clear
that a reasonable official would understand that
what he is doing violates that right. This is not to
11
say that an official action is protected by quali-
fied immunity unless the very action in question
has previously been held unlawful, but it is to
say that in the light of pre-existing law- the
unlawfulness must be apparent.” Jd., at 640, 107
S.Ct. 3034 (citations omitted); see also United
States v. Lanier, 520 U.S. 259, 270, 117 S.Ct.
~ 1219, 1387 L.Ed.2d 432 (1997).
Wilson, 526 U.S. at 614-615.
B. No conflict with circuit precedent.
In the Court of Appeals, on remand, Petitioner as-
serted that “fair warning” of violation of a clearly estab-
lished coastitutional right was provided by Tennessee v.
Garner, 471 U.S. 1 (1985); McKinney v. DeKalb County,
997 F.2d 1440 (llth Cir. 1993); Vazquez v. Metropoiitan
Dade County, 968 F.2d 1101 (11th Cir. 1992); Samples v.
City of Atlanta, 846 F.2d 1328 (11th Cir. 1988); Fundiller v.
City of Cooper City, 777 F.2d 1436 (11th Cir. 1985); Gil-
mere v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985); and
Clark v. Beville, 730 F.2d 739 (11th Cir. 1984). Clearly,
McKinney decided in 1993, Vazquez decided in 1992 and
Samples decided in 1988, could not have given fair warn-
ing of clearly established law in 1987.
However, no analysis was provided below, nor in the
petition herein, as to how these decisions would have
given fair warning of clearly established law as applicable
to the circumstances presented in this case. Thus, Peti-
tioner has not provided any argument or analysis from
which one could conclude that the determination by the
Court of Appeals that “[nJone of these cases were close to
this one in time or fact” is incorrect. Willingham v. Lough-
nan, 321 F.3d 1299, 1304 (11th Cir. 2003).
12
Petitioner’s underlying focus is that this Court should
revisit the underlying facts and reach the opposite result.
Essentially, Petitioner wants this Court to “correct the
result” rather than decide a conflict of the Courts of
Appeals. Petitioner argues that “the second panel of the
Court of Appeals ignored much of the evidence considered
by the civil jury which did not conflict with the findings of
the criminal jury.” [Pet. at 9]. Petitioner ignores any
discussion of the undisputed and judicially noticed fact
that she was convicted of battery on one police officer and
attempted murder of another for her conduct occurring
within a “split second” of the use of force against her.
Petitioner’s argument that the Court of Appeals was
ignorant of “Respondents’ own conduct of lies, planted
evidence and a cover-up.” [Pet. at 11] is simply not rele-
vant to the qualified immunity analysis, as these are
arguments, allegedly supporting claims that were never
alleged against the officers, and which cculd have only
been alleged against the City and even then, would have
been barred by the Petitioner’s conviction under Heck v.
Humphrey, 512 U.S. 477, 483-485, 114 S.Ct. 2364, 2372-
2373, 129 L.Ed.2d 383 (1994). See Hudson v. Hughes, 98
F.3d 868, 872 (5th Cir. 1996) (falsified police report, state
witnesses committing perjury, ineffective counsel); Killian
v. City of Riverview, 98 F.3d 1342 (6th Cir. 1996); Hamilton
v Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (altering, destroy-
ing and suppressing evidence); Franklin v. County of
Riverside, 971 F.Supp. 1332 (C.D. Cal. 1997) (perjury of
police officer and false police report)
This argument’s lack of relevance is corroborated by
citation to Webster v. City of Houston, 689 F.2d 1220 (5th Cir.
1982). Not only was this initial panel decision vacated en
banc, the decision related solely to the trial court judgment
13
finding municipal liability against the City of Houston. See
Webster v. City of Houston,735 F.2d 838 (5th Cir. 1984). The
City of Boynton Beach is no longer a party to these proceed-
ings since the trial court’s judgment notwithstanding the
verdict was affirmed by the Court of Appeals and the City
was not made a party to the first petition for certiorari.
C. No conflict with any consensus of persua-
sive authority from other circuits.
Petitioner claims, in her second quest for certiorari
jurisdiction of this Court, that there is a conflict of the
Court of Appeals with the views of all of the other Courts
of Appeals with respect to the source of decisional law
utilized in determining whether a constitutional right is
“clearly established.” Although the lengthy survey of the
other circuits’ approach is instructional, it does not reveal
that there is any consensus.
More importantly, the decisiums reviewed do not
establish that there was a consensus of persuasive author-
ity, in 1987, that would have given fair warning to reason-
able officers that their conduct, under the facts presented
to them by this case, in seconds before they reacted, would
violate clearly established law.
In Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003),
the Court of Appeals noted:
in Marsh v. Butler County, 268 F.3d 1014 (11th
Cir. 2001) (en banc), we implicitly reaffirmed
that postion when we stated that we do not
understand Wilson to have held that a consensus
of cases of persuasive authority would be able to
establish law clearly. “Each jurisdiction has its
own body of law, and splits between jurisdictions
on matters of law are not uncommon. We do not
<
14
expect public officials to sort out the law of every
jurisdiction in the country.” Jd. at 1032 n. 10.
Thomas, 323 F.3d at 955. Petitioner’s contrary contention
would require police officer’s to predict the course of a
future decision of constitutional law. Wood v. Strickland,
420 U.S. 308, 322, 95 S.Ct. 992, 1001 (1975) (“That is not
to say that school board members are ‘charged with
predicting the future course of constit: itional law.’ Pierson
v. Ray, 386 U.S. at 557, 87 S.Ct. at 1219”).
Contrary to Petitioner’s argument, in Clem v. Cor-
beau, 284 F.3d 548 (4th Cir. 2002) (a decision announced
15 years post incident) there is no discussion of decisional
law of other circuits as clearly establishing the law in the
Fourth Circuit.’ The Fourth Circuit did note that, “[wlell
before 1998 it was clearly established that a police officer
could not lawfully shoot a citizen perceived to be unarmed
and non-dangerous, neither suspected of any crime nor
ficeing a crime scene.” 284 F.3d at 554. However, that
principle of Garner, has never been disputed. This decision
is simply not apposite to the facts in this case.
Another argument of Petitioner is based upon the
dissents of Judge Noonan of the Ninth Circuit in Vaughan
v. Cox, 316 F.3d 1210 (11th Cir. 2003) and Vaughan v. Cox,
264 F3d 1027 (11th Cir. 2001). Although Vaughan did
involve the use of deadly force, this argument has little
application to the questions presented because the opin-
ions are contained in dissents, from cases decided in 2001
and 2003, are factually distinguishable, and based upon
* Indeed, citation to Haddaway v. Ellerbusch, 996 F.2d 1211, 1993
WL 238997 (4th Cir. June 30, 1993) is only in passing, since it was an
unpublished decision.
15
the view that an officer, who failed to fire a warning shot,
- should not be entitled to qualified immunity because“...
as a reasonable police officer [he] is presumed to be famil-
iar with Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694,
85 L.Ed.2d 1 (1985).” 316 F.3d at 1216.
In Tennessee v. Garner, 105 S.Ct. 1694, 1701 (1985),
decided only two years before this incident, it was held
that the use of deadly force was lawful when limited to
where the officer “has probable cause to believe the suspect
poses a threat of serious physical harm, either to the officers
or others.” Jd. Thus, even the dissents in Vaughan do not
conflict with the Court of Appeals source of decisional law,
nor establish a consensus of other persuasive authority.
Petitioner fails to show that there is a persuasive
consensus of the other circuits’ approach on the source of
clearly established rights or law. Petitioner concedes that
the Second Circuit view is unclear. Varrone v. Billoti, 123
F.3d 75 (2nd Cir 1997), relying upon Weber v. Dell, 804
F.2d 796 (2nd Cir. 1986) was appropriately challenged, in
Poe v. Leonard, 282 F.3d 123, 141 (2nd Cir. 2002). In Weber
the issue of the source of precedent for clearly established
law for the circuit was not discussed. On the other hand,
in Wright v. Smith, 21 F.3d 496 (2nd Cir. 1994) the view
was reiterated that “[wJe have held that in determining
whether a right was clearly established at the time the
defendants acted, a court should consider: ... (2) whether
the decisional law of the Supreme Court and the applicable
circuit court supports the existence of the right in question;
...” (citations omitted) (emphasis supplied). 21 F.3d at
500.
In Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003), the
Third Circuit, does rely upon cases of other circuits that
had construed this Court’s decision in Helling v. McKin-
ney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1994)
to find a violation of the Eighth Amendment clearly
established where prison officials failed to provide for the
medical needs of prisoners exposed to ETS. However, as
the dissent ably explains, “the majority calls this conclu-
sion ‘clearly established’ federal law, meaning that a reason-
able prison official should have known that we would decide
the case this way, even though the circuit courts have
reached numerous differing results on this issue and there is
no controlling precedent.” Id., 316 F.3d at 271. This view
appears more consistent with Wilson v. Layne, 526 U.S. 603,
618, 119 S.Ct. 1692 (if judges disagree on a constitutional
question, it is unfair to subject officials to money damages for
picking the losing side of the controversy).
In McClendon v. City of Columbia, 305 F.3d 314 (5th
Cir. 2002), cert. denied, 123 S.Ct. 1355 (2003) the en banc
decision of the Fifth Circuit did resolve a conflict of circuit
panels on the source of decisional law in favor of reviewing
other circuit decisions for determination of whether a right
under the Fourteenth Amendment “state-created danger
theory” had been clearly established. However, the diffi-
culty of this approach, in qualified immunity, is empha-
sized by the number of concurring and dissenting opinions.
After reviewing other circuit decisions the Fifth Circuit
correctly observed:
Thus, while a number of our sister circuits had
accepted some version of the state-created dan-
ger theory as of July of 1993, given the inconsis-
tencies and uncertainties within this alleged
consensus of authorities, an officer acting within
the jurisdiction of this court could not possibly
17
have assessed whether his or her conduct vio-
lated this right in the absence of explicit guid-
ance from this court or the Supreme Court.
Id., 305 F.3d at 321. This decision corroborates that
decisional constitutional rights will only provide clear
warning, if established by the applicable circuit or this
Court.
In the Sixth Circuit, it has been established that to
determine whether a constitutional right is clearly estab-
lished reference can be made, as a last resort, to decisions
of other circuits. However, such a search is only a possibil-
ity to be made in the extraordinary case and where “these
decisions must both point unmistakably to the unconstitu-
tionality of the conduct complained of and be so clearly
foreshadowed by applicable direct authority as to leave no
doubt in the mind of a reasonable officer that his conduct,
if challenged on constitutional grounds, would be found
wanting.” Ohio Civil Serv. Employees Ass’n v. Seiter, 858
F.2d 1171, 1177 (6th Cir. 1988).
The Seventh Circuit has looked to other circuits for
analogous cases to determine whether the law is clearly
established, in the absence of precedent. See Donovan v.
City of Milwaukee, 17 F.3d 944, 953 (7th Cir. 1994). But
even then, the court recognized that this is a “heavy
burden” and that where there are differing circuit deci-
sions, the relevant case law is still developing, and thus, is
not clearly settled, citing to Barts v. Joyner, 865 F.2d 1187,
1194 (11th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 101,
107 L.Ed.2d 65 (1989). Id., 17 F.3d at 953."
* The issue in Donovan, the extent of constitutional rights involv-
ing high speed police chases was ultimately decided by this Court in
(Continued on following page)
18
The Tenth Circuit approach is somewhat different in
that, in the absence of binding precedent of this Court or
the Tenth Circuit, it can look to the other circuits to
determine whether a “clear weight of authority” has been
established. Garcia by Garcia v. Miera, 817 F.2d 650 (10th
Cir. 1987).
The Eighth Circuit does appear to have followed the lead
of the Ninth Circuit in adopting a wide-ranging approach that
allows it to search for clearly established law, in the absence of
binding precedent, from any source, including District Court
decisions. See Ward v. San Diego County, 791 F.2d 1329 (9th
Cir. 1986). Additionally, this doctrine considers that law may
be clearly established if it is likely “that the Supreme Court or
this circuit would have reached the same result as courts
which had previously considered the issue.” Tribble v. Gard-
ner, 860 F.2d 321, 324 (9th Cir. 1988). See Capoeman v. Reed,
754 F2d 1512, 1515 (9th Cir. 1985). These circuits hold that
“(gjovernment officials are charged with knowledge of consti-
tutional developments, including all available decisional law.
Gutierrez v. Municipal Court, 838 F.2d 1031, 1048 (9th Cir.
1988).” Tribble, 860 F.2d at 324. Although the circuits suppos-
edly do not impose a requirement that officers be law profes-
sors or academicians, it certainly requires them to be able to
comprehend and apply the legal analysis employed to factu-
ally different circumstances. See Capoeman v. Reed, 754 F.2d
County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998).
’ In Ward the Ninth Circuit relied upon the prior decision of Tinetti
v. Wittke, 479 F.Supp. 486 (E.D. Wis. 1979), adopted on appeal by the
Seventh Circuit, 620 F.2d 160 (7th Cir. 1980). The decision’s vitality
was questioned by the Eleventh Circuit in Skurstenis v. Jones, 236 F.3d
678 (11th Cir. 2000).
19
1512, 1514 (9th Cir. 1985). State officials are then called upon
to stake their financial resources on their prognostication of
how the Court of Appeals would later decide, a wager that
would unlikely be made by any law professor or academician.
Petitioner mistakenly relies upon the dicta of the
dissent in Trulock v. Freeh, 275 F.3d 391, 407 (4th Cir. 2001),
cert. denied, 123 S.Ct. 621 (2002) as establishing the view of
the Fourth Circuit. In this Bivins action against FBI agents,
the majority held, based on a review of its decisions, that
although prior precedent held that a search of a locked
footlocker was unlawful, it did not follow that a search of
password protected computer files was so analogous to defeat
the officers’ qualified immunity. Id., 275 F.3d at 404.
In Amaechi v. West, 237 F.3d 356 (4th Cir. 2001),
although it is stated that the Court of Appeals viewed
Wilson as permitting review of a “consensus of persuasive
authority” for clearly established law on an issue, the
decision was based upon a finding that “[flirmly rooted
Supreme Court and Fourth Circuit precedent involving
strip searches and body cavity searches should have made
it apparent to West, as a reasonable officer, that his search
of Amaechi was unlawful under the Fourth Amendment.”
Id., 237 F.3d at 364.°
As recent as 1998, the Fourth Circuit agreed with the
Eleventh and Sixth Circuits as to the source of decisional -
law. In Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998), en
banc, it was noted,
* In this decision, and a number of others cited by Petitioner, the
“clearly established right” involved either a strip or cavity search, not
the use of deadly force.
20
The law is clearly established such that an offi-
cer’s conduct transgresses a bright line when the
law has “been authoritatively decided by the Su-
preme Court, the appropriate United States
Court of Appeals, or the highest court of the
state.” Wallace v. King, 626 F.2d 1157, 1161 (4th
Cir. 1980); see Cullinan v. Abramson, 128 F.3d 301,
311 (6th Cir. 1997) (explaining that “[o]rdinarily, at
least, in determining whether a right is ‘clearly
established’ this court will not look beyond Su-
preme Court and Sixth Circuit precedent”), cert.
denied, 523 U.S. 1094, 118 S.Ct. 1560, 140
L.Ed.2d 792 (1998); Jenkins ex rel. Hall v. Talla-
dega City Bd. of Educ., 115 F.3d 821, 826 n. 4
(11th Cir.1997) (en banc) (explaining that “the
law can be ‘clearly established’ for qualified im-
munity purposes only by decisions of the U.S.
Supreme Court, [the] Eleventh Circuit Court of
Appeals, or the highest court of the state where
the case arose”), cert. denied, 522 U.S. 966, 118
S.Ct. 412, 139 L.Ed.2d 315 (1997).
141 F.3d at 114.
Upon certiorari review by this Court, it was observed,
in Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692
(1999) that:
Petitioners have not brought to our attention any
cases of controlling authority in their jurisdiction
at the time of the incident which clearly estab-
lished the rule on which they seek to rely, nor have
they identified a consensus of cases of persuasive
authority such that a reasonable officer could not
have believed that his actions were lawful.
Id., 526 U.S. at 617. This Court also held that the officers
in this case cannot have been “expected to predict the
future course of constitutional law. Procunier v. Navarette,
434 U.S. 555, 562, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). See
21
also Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992,
43 L.Ed.2d 214 (1975); Pierson v. Ray, 386 U.S. 547, 557,
87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).” Id. 526 U.S. at 618.
Finally, this Court observed that where the Courts of
Appeals have differed on a constitutional question, “it is
unfair to subject police to money damages for picking the
losing side of the controversy.” Id., at 617-618.
In fine, it is fair to say that without specific guidance
on the subject from prior precedent from this Court, that
differing views have developed on the source of “clearly
established” law. However, it is not a fair conclusion that one
approach is necessarily derived into a persuasive consensus,
nor that the Court of Appeals is wrong in its view.
But most importantly to these officers, there simply is no
substantive application of this argument to the issues in this
case. Petitioner simply has not provided proof of a “consensus
of persuasive authority” that clearly established that they
were fairly warned that their conduct, in 1987, was unlawful.
To the contrary, as argued below, the persuasive weight of
authority, as evidenced by analogous decisions of the Courts of
Appeals, is that their conduct, under the circumstances facing
them, was consistent with the Fourth Amendment and
Garner. See Nelson v. County of Wright, 162 F.3d 986, 991 (8th
Cir. 1998); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.
1997); Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir. 1997);
Elliot v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996), petition for
reh’g en banc denied, 105 F.3d 174 (1997); St. Hilaire v. City of
Laconia, 71 F.3d 20, 28 (1st Cir. 1995); Hegarty v. Somerset
County, 53 F.3d 1367 (1st Cir. 1995), cert. denied, 516 U.S.
1029, 1165 S.Ct. 675, 183 L.Ed.2d 524 (1995); Roy v. Inhabi-
tants of City of Lewiston, 42 F.3d 691, 697 (1st Cir. 1994);
Harrell v. Decatur County, Ga., 41 F.3d 1494 (11th Cir. 1995),
vacating and adopting dissent in 22 F.3d 1570 (11th Cir.
22
1994); Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir.
1994); Plakas v. Drinski, 19 F.3d 1143, 1148-50 (7th Cir. 1994).
Ill. The law-of-the-case doctrine has not been re-
jected by the Court of Appeals in qualified immu-
nity cases, nor are the other circuits’ views to the
contrary; it simply was not applicable to the deci-
sion below.
A. The Court of Appeals decision does not con-
. flict with its own precedent.
Petitioner again raises the argument that the Court of
Appeal’s first unpublished decision on qualified immunity,
that was addressed by both the District Court and the
circuit court opinions is binding law of the case that
precludes further review of the issue.
As it was not addressed previously, it is presumed
that this-Court found the issue, then premised upon a
dissent to denial of a petition for rehearing en banc, to be
without merit. Petitioner has now discarded the initial
premise in favor of alternative arguments that the Court
of Appeals either did not follow its own precedent or that
the decision of the Court of Appeals is contrary to the
other Courts of Appeals.
As the remand from this Court was to re-consider the -
decision in light of Hope v. Pelzer, the Court of Appeals did not
solicit supplemental briefing, nor address this argument in
rendering its decision. Thus, this claim is at best, moot, and
for practical purposes barred from further reconsideration.
The initial panel decision, on appeal of the denial of
the officers’ motion for summary judgment, was based
upon a finding that there were material issues in dispute.
Such a basis has not been found to have preclusive effect
on further reconsideration of the defense at trial. There
23
was no determination of clearly established law that
would deny qualified immunity to the officers, in the
unpublished decision. [See Pet. App. F).
In this case, the seminal issue was timing. Prior to
trial it was not established as to whether Willingham was
shot after everything was over or whether the use of force
was an integral part of the event. Indeed, as noted several
times in the opinion of the Court of Appeals post trial,
Willingham testified at trial that she was shot within a
“split second” of throwing a knife at Panucci and raising
her hands into the air. Moreover, it was established at trial
that the entire event occurred with 90 seconds, clearly
calling for the sort of “split-second” judgments of the
officers envisioned by Graham v. Connor, 109 S.Ct 1865,
1872 (1989). See Willingham v. Loughnan, 261 F.3d 1178
(11th Cir. 2001).
Moreover, the criminal court transcript had not been
presented nor reviewed by either the District or Circuit Court
to determine the parameters of the preclusive effect of the
criminal convictions. After its presentation at trial, it was given
some weight by the District Court. However, the full legal import
was only correctly recognized by the Court of Appeals. ;
In the first unpublished decision, the Court of Appeals
did not make a judicial finding of fact. The District Court,
in denying summary judgment found that “there remain
in dispute genuine issue of material fact regarding the
circumstances involved in the incident in question — and
thus the applicability of qualified immunity to the case.”
[Pet. App. G, p. 79a]. The Court of Appeals, in affirming
this finding, stated that since it declined to address the
preclusive effect of the criminal conviction without having
the criminal court transcript to review, if Plaintiff’s
version of the facts were accepted and “/i/f the officer fired
on plaintiff even though she was posing no threat to
24
anyone, they would have violated clearly established law.”
[Pet. App. F, p. 78al. (emphasis supplied).
This does not establish that the officers were not
entitled to qualified immunity under the facts of the case —
it was nothing more than a supposition that IF those facts
which Plaintiff claims are in dispute are the ultimate facts
and that the criminal trial transcript and conviction are
not considered, then there would be no entitlement to
qualified immunity. However, as the Court of Appeals
addressed in detail, the facts at trial and the review of the
criminal trial transcript and judgment show that there
was clear entitlement to qualified immunity. Id. See
Johnson v. Jones, 515 U.S. 304, 311, 319-20, 115 S.Ct.
2151, 132 L.Ed.2d 238 (1995) (where genuine issues of
material fact exist, the officer is entitled to appeal the
District Court’s denial of his qualified immunity defense at
the conclusion of trial). Petitioner has not argued that the
facts were the same at the motion for summary judgment
stage asattrial. ~-
In her supplemental brief on reconsideration, Peti-
tioner did not suggest that the Court of Appeals position
was contrary to the other circuits. Indeed, Petitioner relied
upon previous Eleventh Circuit authority for the proposi-
tion that “[ilt is firmly established rule of this Circuit that
each succeeding panel is bound by the holding of the first
panel to address an issue of law, unless and until that
holding is overruled en banc, or by the supreme court.”
Villano v. City of Boynton Beach, 254 F.3d 1302, 1313 (11th
Cir. 2001). [Resp. App. A, p. 15a].
When considering the motion for summary judgement,
the District Court did not address clearly established law
in its denial of summary judgment, nor did the Court of
Appeals. As the District Court found in its order on
25
post-trial motions for judgment, « _.. the officers properly
and timely request that the Court revisit this factual
issue, the Court still finds that the qualified immunity ‘
defense turns on issues of fact that were properly resolved
by the jury.” [Pet. App. D, p. 4la, n. 4]. The Court of
Appeals found this to be error.
Moreover, Plaintiff’s claim that the Court of Appeals
rejects the application of the law-of-the-case doctrine is
meritless. Having now discarded the argument (although
it is still cited as authority — [Pet. at 26]) that Judge
Tjoflat’s dissent to the denial of a request for hearing en
banc in Riley v. Camp, 130°F.3d 958 (11th Cir. 1997) is
authority for the proposition, Petitioner now claims that
- Oladiende v. City of Birmingham, 230 F.3d 1275 (11th Cir.
2000) supports that contention.
However, Oladiende did not reject the application of the
law-of-the-case doctrine to qualified immunity cases. The
Court of Appeals, simply, after thoughtful, cogent discussion,
found it not applicable to the case. Id. 230 F.3d at 1290.
Similar to the proceedings below in this case, the prior
- unpublished decision did not delineate established facts
and find that there was no entitlement to qualified immu-
nity — it simply found that facts were in dispute. [Pet. App.
F, p. 78]. As the analysis of the issue of Oladiende con-
cluded: | :
Where a previous panel has given no explanation
for its decision, a subsequent appellate court
panel is “not bound by any Jaw of the case’
unless a determination by us concerning the pro-
priety of [the district court’s order] is necessarily
inconsistent with every possible correct basis for
the earlier rulings of this court.” Key v. Wise, 629
F.2d 1049, 1054-55 (5th Cir. 1980). One correct
basis for this court’s earlier ruling is that there
26
remained genuine issues of material fact in dis-
pute requiring a trial as to the police depart-
ment’s interests and the individual defendants’
motives in transferring the plaintiffs. Such a rul-
ing would present no binding conclusion of law as
to the defendants’ qualified immunity, but would
simply allow the case to proceed to the jury. A
conclusion now, after the facts have been devel-
oped at trial, that the defendants are entitled to
qualified immunity would not be inconsistent
with this possibly correct basis for the earlier rul-
ing of this court.
Oladiende, 230 F.3d at 1289-1290.
As far back as 1984, the Court of Appeals, in Wheeler
v. City of Pleasant Grove, 746 F.2d 1437 (11th Cir. 1984),
delineated the general contours of law-of-the-case doctrine
as above, and noted that there were certain exceptions,
including when (1) a subsequent trial produces substan-
tially different evidence, (2) controlling authority has since
made a contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would
work manifest injustice. These principles are markedly
similar to those of the Third Circuit in In re City of Phila-
~ delphia, supra.
Most central to the consideration of this doctrine in
this case is that in those cases where a motion for sum-
mary judgment based on qualified immunity is denied,
because the facts are not fully developed, the District
Court should be free to revisit the qualified immunity
question during and post trial to determine whether the
facts, as developed at trial, differ from those taken in the
light most favorable to the plaintiffs at the summary
judgment stage. See Kelly v. Curtis, 21 F.3d 1544, 1546
(11th Cir. 1994) (defendants may raise qualified immunity
27
anew at trial in motions for judgment as a matter of law
because, “‘rulings on summary judgment motions’ are ‘the
facts for present purposes,’ but they ‘may not be the actual
facts.’”); see also Sims v. Metropolitan Dade County, 972
F.2d 1230, 1233 (11th Cir. 1992).
If the facts presented by plaintiff at the summary
judgment stage become, without notable exception, the
“sctual facts” as developed at trial, then the qualified
immunity determination, if made by a prior appellate
panel, should not be revisited. If however, as here, there
truly was no qualified immunity determination made and
there was a notable difference as to the facts and devel-
opment of evidence (e.g., criminal trial transcript intro-
duced; plaintiff admitting she was shot within a split second
of throwing a knife) then the defendant's right to raise
qualified immunity should be, as it was, preserved. See
Johnson v. Jones, 515 U.S. 304, 311, 319-20, 115 S.Ct. 2151,
132 L.Ed.2d 238 (1995) (where genuine issues of material
fact exist, the officer is entitled to appeal the District Court’s
denial of his qualified immunity defense at the conclusion of
trial, once the factual issues have been resolved).
B. The Court of Appeals’ decision is not con-
trary to the other Courts of Appeals.
Petitioner now suggests that the Court of Appeals
position was contrary to the other circuits. In McCloud v.
Testa, 97 F.3d 1536 (6th Cir. 1996), the Sixth Circuit
recognized and concurred with the Court of Appeals
analysis of the first panel decision below. The Sixth Circuit
specifically found that: :
Uncertainty about the actual duties of these
positions, when their inherent nature is not ap-
parent (no parties to this suit have cited any
28
helpful state or county law defining the duties of
the posiiions), precludes us from reversing the
district court’s determination. We emphasize that
qualified immunity may become available to
Testa with respect to any of these positions as
the facts are crystallized or the relevant
state/county law is developed before the district
court at any time up to or including the conclu-
sion of trial. Our current disposition of this case
does not prevent the district court from granting
qualified immunity to Testa with respect to any
of these positions.
Id., 97 F.3d at 1561, 1562. This hardly supports Peti-
tioner’s contention of conflict.
In Kimberlin v. Quinlan, 199 F.3d 496 (D.C. Cir. 2000)
the individual defendants moved for summary judgment
on qualified immunity which was denied by the District
Court, finding that the law was clearly established that
prison officials could not interfere with prisoner’s First
Amendment right to access to the press. This issue was
not appealed, but other issues were. When remanded back
to the District Court, it refused to revisit the issue on a
renewed motion for summary judgment, relying on its
previous decision as being the law of the case, since that
issue had not been appealed. The Court of Appeals af-
firmed, on the same grounds. Id., 199 F.3d at 498, 499.
In In re City of Philadelphia, 158 F.3d 711 (3d Cir.
1998) a prior appeal on summary judgment, which found
that city officials were entitled to qualified immunity, had
determined that the conduct of city officials constituted a
29
seizure of plaintiff by the City within the meaning of the.
Fourth Amendment. Since, as the Third Circuit empha-
sized, “ ... that because the evidence was at least as
strong at trial on the issue of seizure as it was at the
summary judgment stage, our prior ruling that a seizure
occurred controls our resolution of this appeal.” Id. 158
F.3d at 722. No such finding was made below that the
summary judgment evidence was the same as it was at
trial. Indeed, the Court of Appeals pointed out the lack of
certain evidence caused it not to consider the legal issues.
Thus, the Court of Appeals’ analysis does not differ
from that of the other circuits. See McCloud, 97 F.3d at
1561, 1562 (qualified immunity may become available as
the facts are crystallized or the relevant law is developed
before the District Court at any time up to or including the
conclusion of trial); In re City of Philadelphia, 158 F.3d
711, 718 (doctrine does not preclude reconsideration
where: (1) new evidence is available, (2) a supervening
new law has been announced, or (3) the earlier decision
was clearly erroneous and would create manifest injus-
tice).
Nor is it contrary to this Court’s decisions. In Behrens
v. Pelletier, 516 U.S. 299 (1996), the Court found that
qualified immunity could be the subject of two pre-trial
appeals, because the first may be on allegations and the
second on actual facts found in discovery.
CONCLUSION
In her second petition to this Court, Petitioner raises
new issues not timely pressed in the District Court or the
Court of Appeals.
The Court of Appeals was directed to reconsider its
prior decision in light of Hope v. Pelzer. Petitioner did not
30
provide any relevant authority to the Court of Appeals
showing that the officers had fair warning of clearly
established law mandating that their conduct, under the
circumstances presented in the case, was unlawful. Nor
has Petitioner provided such analysis to this Court.
Petitioner has not provided any consensus of persua-
sive authority from the other Courts of Appeals on the
issues in this case that conflicts with precedent of the
Court of Appeals.
The law-of-the-case doctrine has not been rejected by
the Court of Appeals generally nor specifically in this case.
It is simply not applicable under the facts.
What Petitioner suggests is that despite the law of
this Court and The Courts of Appeals consistently holding
that their conduct was lawful, Officers Loughnan and
Buecler should have been prescient enough, in the split
second they had to decide, to predict a future course of
constitutional law that remains undisclosed. The looming
reward for this choice is financial ruin. The Court of
Appeals correctly found they had immunity from this
action.
The petition should be denied.
- Respectfully submitted,
GEORGE P. ROBERTS, JR., Esq.
Counsel of Record
ROBERTS, REYNOLDS & BEDARD PA.
470 Columbia Drive, Ste. 101C
West Palm Beach, FL 33409
561-688-6560
Counsel for Respondents
James Loughnan & Brian Buecler
App. 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CASE NO. 99-4005
D.C. DOCKET NO. 90-8156-CIV-UUB
BETTY WILLINGHAM,
Plaintiff/Appellee/Cross-Appellant,
: Vv.
JAMES LOUGHNAN and BRIAN BEUCLER,
Defendants/Appellants/Cross-Appellees.
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA
APPEAL ON REMAND FROM THE
UNITED STATES SUPREME COURT
APPELLEE’S SUPPLEMENTAL BRIEF
BARBARA A. HEYER, ESQ.
FLORIDA BAR NO: 346691.
HEYER & ASSOCIATES, P.A.
Attorneys for Appellee
1311 SE 4th Avenue
Fort Lauderdale, Florida 33316
(954) 522-4922/(561) 833-1068
FAX NO: (954) 522-4955
* * *
App. 2
D. ARGUMENT
I. THE IMPACT OF HOPE V. PELZER
The United States Supreme Court in Hope, specifi-
cally disappproved this Court’s method of requiring facts
of previous cases be “materially similar” in order for a
plaintiff to overcome the qualified immunity defense. Id.
at 2516. Based upon Hope, this Court, in its August 15,
2001 opinion, incorrectly granted qualified immunity,
stating that:
“Cajlmost always, to establish the law clearly in
the context of the Fourth Amendment, a materi-
ally similar case must have already decided that
what the police officer was doing was unlaw-
ful.... ({NJo bright line exists for identifying
when force is excessive; we have therefore con-
cluded that unless a controlling and materially
similar case declares the official’s conduct uncon-
stitutional, a defendant is usually entitled to
qualified immunity.”). . . . Our own survey of the
case law indicates that in 1987 it was not clearly
established that it constituted excessive force to
shoot a person under the circumstances pre-
sented in this case.” (Emphasis added). Willing-
ham, supra at 1187.
The Appellants have argued that “[oJnly where there
is a pre-existing, ‘factually defined’ case which is precisely
on point can a litigant survive the defense of qualified
immunity before the court of Appeals for the Eleventh
Circuit.” (Respondents’ Brief, p. 5). While this is a correct
statement of this Court’s previous position with respect to
qualified immunity, the Supreme Court opinion in Hope
has determined that it was an incorrect position.
App. 3
“This rigid gloss on the qualified immunity stan-
dard, though supported by Circuit precedent, is
not consistent with our cases. ... Our opinion in
Lanier thus makes clear that officials can still be
on notice that their conduct violates established
law even in novel factual circumstances. Indeed,
in Lanier, we expressly rejected a requirement
that previous cases be fundamentally similar. Al-
though earlier cases involving fundamentally
similar facts can provide especially strong sup-
port for a conclusion that the law is clearly estab-
lished, they are not necessary to such a finding.
The same is true of cases with materially similar
facts. Accordingly, pursuant to Lanier, the sali-
ent question that the Court of Appeals ought to
have asked is whether the state of the law in
[1987] gave respondents fair warning that their
alleged treatment of [Willingham] was unconsti-
tutional.”
Id. at p. 2511. Clear “fair warning” had been provided to
Appellants both through case law, their training and
common sense. Would any court in this land justify and
condone a shooting by one of its citizens, let alone a
supposedly highly trained police officer, under like circum-
stances? As best stated by this Court in its September 2,
1997 ruling: “According to plaintiff, she was shot when she
was merely standing in the doorway of her house, scream-
ing and pulling her hair and posing no threat to anyone. If
the officers fired on plaintiff even though she was posing no
threat to anyone, they would have violated clearly-
established law.” (emph. added). (Appendix 2, p. 38a).
Such a determination by this Court came as a result of
evaluating several cases from this Court and the Supreme
Court which clearly dictate that excessive force used in
similar circumstances has been determined to be not
App. 4
entitled to qualified immunity. Tennessee v. Garner, 471
U.S. 1 (1985); Clark v. Beville, 730 F.2d 739 (11th Cir.
1984); Fundiller v. City of Cooper City, 777 F.2d 1436
(11th Cir. 1985); Gilmere v. City of Atlanta, 774 F.2d 1495
(11th Cir. 1985); Samples v. City of Atlanta, 846 F.2d 1328
(11th Cir. 1988); Vasquez, supra; McKinney by McKinney
v. DeKalb County, GA., 997 F.2d 1440 (11th Circuit 1993).
McKinney is of particular interest, as this Court deter-
mined that the officer in question was not entitled to
qualified immunity, despite evidence that at the time of
the shooting plaintiff “allegedly had a butcher knife in one
hand and a twelve-inch stick in the other.” Jd. at 1442.
According to this Court:
“The law was clearly established before Nelsen’s
actions in March 1990 that police use of exces-
sive force is a constitutional violation. Gilmere v.
City of Atlanta, 774 F.2d 1495, 1500-02 (11th Cir.
1985), cert. denied, 476 U.S. 1115, 106 S.Ct.
1970, 90 L.Ed.2d 654 (1986). The district court
correctly held that the facts are in dispute as to
what happened that led Officer Nelsen to fire his
gun. As alleged by the plaintiffs, however, Abdul
had previously put down his knife and was
merely shifting position, not threatening the
safety of any persons, when Officer Nelsen shot
him.”
Id. at 1443.
Additionally, the Appellants own conduct supports a
finding that they knew that their conduct of shooting an
unarmed woman when she was a threat to no one was
unconstitutional. The planting of a second knife by the
Appellants and the fabricated cocaine evidence was solely
for the purpose of covering up conduct which they knew to
be unlawful.
P — a —— — ee te eae at ins - nae en tae Snthtes
App. 5
“Tt is the firmly established rule of this Circuit that
each succeeding panel is bound by the holding of the first
panel to address an issue of law, unless and until that
holding is overruled en banc, or by the Supreme Court.’”
(emph. added) Villano v. City of Boynton Beach, 254 F.3d
1302, 1313 (11th Cir. 2001).
The laws-of-the-case doctrine generally protects
judicial findings of fact and law from subsequent review by
the same court. “Under this doctrine, a court should not
reopen issues decided in earlier stages of the same litiga-
tion.” Aguilar v. Agostini, 521 U.S. 203, 236 (1997) (citing
Messenger v. Anderson, 225 U.S. 436 (1912). The doctrine
does not apply if the court is “convinced that [its prior
decision] is clearly erroneous and would work a manifest
injustice,” Arizona v. California, 460 U.S. 605, n.8 (1983),
“although as a rule courts should be loathe to do so in the
absence of extraordinary circumstances. . .” Christianson
v. Colt Industries Operating Corp., 486 U.S. 800, 817
(1988). See generally 18B, C. Wright, A. Miller & E.
Cooper, Federal Practice & Procedure § 4478 (2002) (“The
standards announced for departing from the law of the
case commonly demand strong justification.”).
Given the accepted evidence in the instant case, taken
in the light most favorable to Appellee, “no factually-
particularized, preexisting case law was necessary for it to
be very obvious to every objectively reasonable officer
facing [Appellants’] situation that [Appellants’] conduct
... violated [Willingham’s] constitutional right to be free
of the excessive use of force.” Vinyard v. Wilson, 2002 WL
31521208 (11th Cir. 2002). “The peculiar facts of this case
are ‘so far beyond the hazy border between excessive and
acceptable force that [every objectively reasonable officer]
had to know he was violating the Constitution even
without caselaw on point.” Id.
The criminal conviction of BETTY WILLINGHAM
cannot justify gunning her down when she was a threat to_
no one. “The fact that the act to which the police re-
sponded was a criminal act does not foreclose the possibil-
ity that the officers’ response was also illegal.... To
conclude otherwise would give law enforcement authori-
ties carte blanche to respond as they please to criminal
activity.” Vasquez, supra at 1108-9.
“When “the defendants” conduct is so patently
violative of the constitutional right that reason-
able officials would know without guidance from
the courts’ that the action as unconstitutional,
closely analogous pre-existing case law is not re-
quired to show that the law is clearly estab-
lished.’ To hold otherwise would allow an officer
who understood the unlawfulness of his actions
to escape liability simply because the instant
- case could be distinguished on some immaterial
fact, or worse, because the illegality of the action
was so clear that it had seldom befcre been liti-
gated.” Clem v. Corbeau, 284 F.3d 543, 553 (4th
Cir. 2002). we
Il. THE LAW PROVIDED ‘FAIR _WARN-
ING,” PRECLUDING ENTITLEMENT TO
QUALIFIED IMMUNITY _
The Supreme Court has held that where an excessive
force claim arises in the context of an arrest or investiga-
tory stop of a free citizen, it is most properly characterized
as a claim invoking the protections of the Fourth Amend-
ment. Graham v. Connor, 109 S.Ct. 1865, 1871 (1989). The
Supreme Court stated:
App. 7
“Today, we make explicit what was implicit in
Garner’s analysis, and hold that all 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 citi-
zen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard
rather than under a ‘substantive due process’
approach.” Id.
The conduct of Appellants when they unreasonably
seized the Appellee as she stood, threatening nobody, in
the doorway of her home, by shooting her eight times
while standing less than 6 feet away from her violated
“clearly established law.” This is particularly true, where,
as in the instant case, the only thing in Ms. WILLING-
HAM’s hands was hair.
“An officer will be entitled to qualified immunity if his
actions were objectively reasonable, that is if an objec-
tively reasonable officer in the same situation could have
believed that the force used was not excessive. .. . protect-
ing from suit all but the plainly incompetent or one who is
knowingly violating federal law.” (Citations omitted).
(Emphasis added). Vinyard, supra at p. 4.
“The threshold inquiry a court must undertake in a
qualified immunity analysis is whether the plaintiff’ s
allegations, if true, establish a constitutional violation. ...
‘the next sequential step is to ask whether the right was
clearly established.’” (citations omitted). Id. at p. 4. “‘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.’”
(emph. added). (citations omitted). Id. at p. 4. The Su-
preme Court has stated that the qualified immunity
App. 8
inquiry focuses on whether the plaintiff can identify
“controlling authority in [its] jurisdiction at the time of the
incident which clearly established the rule on which [it]
seeks] to rely,” or “a consensus of cases of persuasive
authority such that a reasonable officer could not have
believed that his actions were lawful.” Wilson v. Layne,
526 U.S. 603, 617 (1999); Hope, supra. “Fair warning” can
be demonstrated in various ways, and “. . . in the absence
of fact-specific case law, the plaintiff may overcome the
qualified immunity defense when the preexisting general
constitutional rule applies ‘with obvious clarity to the
specific conduct in question,’ and it must have been ‘obvi-
ous’ to a reasonable police Officer that the pertinent
conduct given the circumstances must have been unconsti-
tutional at the time.” (Citations omitted). Vinyard, supra.
at p. 8. “{GJeneral statements of the law are not inher-
ently incapable of giving fair and clear warning, and in
other instances a general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though “the
very action in question has [not] previously been held
unlawful”’” Id. at p. 8, citing to Hope, supra at 2516;
United States v. Lanier, 520 U.S. 259, 271 (1997); Ander-
son v. Creighton, 483 U.S. 635, 640 (1987).
The law providing “fair warning” to Appellants at the
time is as follows:
“Whenever an officer restrains the freedom of a person
to walk away, he has seized that person.” Tennessee v.
Garner, 471 U.S. 1, 105 S.Ct. 1694 (1985). A seizure is not
unconstitutional unless it is unreasonable. What is unrea-
sonable or reasonable is determined by “ . . . balance{ing]
the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of
3
ve
' ae
"4
A
Ba
er
ag
be
re.
§
«%
is
CT ACR IN oP aS ey
PLES PSN Pak Te RT Fema any me?
SRO DIE aN eM Oe EMT A Ee
App. 9
the governmental interests alleged to justify the intru-
sion.” Id. at 1699 (Quoting U.S. v. Place, 462 U.S. 696,
703, 103 S.Ct. 2637, 2642 (1983)). “In conducting this
balancing test, we are to consider ‘the scope of the particu-
lar intrusion, and the manner in which it is conducted, the
justification for initiating it, and the place in which. itjg.—,
conducted.’” Gilmere, supra at 1502 (11th Cir. :1985)
(Quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861,
1884 (1979). See also: Clark, supra; Fundiller, supra;
Samples, supra; Vazquez, supra; McKinney, supra. -
The Court in Graham held that “the ‘reasonableness’
of a particular force must be judged from the perspective
of a reasonable officer on the scene, rather than [that of an
officer] with the 20/20 vision of hindsight. The test of
reasonableness is an objective one, without regard to the
underlying intent or motivation of the officer. The proper
question to be asked is whether the officer’s actions were
objectively reasonable under the facts and circumstances
confronting him.” Graham, supra at 1872. Whether the
force used was excessive must be objectively determined
and is a jury question. Barlow v. Ground, 943 F.2d 1132
(9th Cir. 1991); Posr v. Doherty, 944 F.2d 91 (2d Cir. 1991);
Dixon v. Richer, 922 F.2d 1456 (10th Cir. 1991); Ortega v.
Schramm, 922 F.2d 684 (11th Cir. 1991).
In Graham, the Court held that it was reversible error
for the trial court to apply the four-part test of Johnson v.
Glick, 481 F.2d 1028 (2nd Cir. 1973) cert. denied 414 US.
1033 (1973) in a Fourth Amendment excessive force case.
The Court noted that the Johnson v. Glick test which had
previously been used to analyze excessive force claims was
incompatible with a proper Fourth Amendment analysis.
The Johnson v. Glick test required consideration of
whether the individual officer acted in “good faith” or
App. 10
“maliciously and sadistically for the very purpose of
causing harm”. The Supreme Court held that the consid-
eration of these factors put in issue the subjective motiva-
tions of the individual officers, which has no bearing on
whether a particular seizure is unreasonable under the
Fourth Amendment. Id.
Addressing the use of deadly force, the United States
Supreme Court stated: |
“The use of deadly force to prevent the escape of
all felony suspects, whatever the circumstances,
is constitutionally unreasonable. It is not better
that all felony suspects die than that they es-
cape. Where the suspect poses no immediate
threat to the officer and no threat to others, the
harm resulting from failing to apprehend him
does not justify the use of deadly force to do
so.... Where the officer has probable cause to
believe that the suspect poses a threat of serious
physical harm either to the officer or to others, it
is not constitutionally unreasonable to prevent
escape by using deadly force. Thus, if the suspect
threatens the officer with a weapon or there is
probable cause to believe that he has committed
a crime involving the infliction or threatened in-
fliction of serious physical harm, deadly force
may be used if necessary to prevent escape, and
if, where feasible, some warning has been given.”
(Emphasis added). Garner, supra at 1701.
Garner is not restricted to force intended to cause
death. Pruitt v. City of Montgomery, 771 F.2d 1475 (11th
Cir. 1985). It extends to “force capable of causing serious
personal injury.” Id. at 1479-1480, n.10. Under section
776.01 of Florida Statutes, deadly force “means force
which is likely to cause death or great bodily harm....”
=~
App. 11
In Kidd v. O’Neil, 774 F.2d 1252 (4th Cir. 1985), the Court
noted that while Garner deals “specifically only with the
extreme example of deadly force, nevertheless [it] makes
clear that the use of any significant degree of excessive
force in effecting otherwise constitutionally valid arrests
may constitute an unreasonable seizure of the person in
violation of fourth amendment rights.” Jd. at 1254. No
bones need to be broken for a use of force to be “grossly
disproportionate to the need ... ” Shillingford v. Holmes,
634 F.2d 263, 265 (5th Cir. 1981). (Police officer striking
the plaintiffs camera with his nightsticx, thereby causing
the camera to strike and lacerate the plaintiff's forehead
established a deprivation of his constitutional rights).
Even if the Appellants BEUCLER and LOUGHNAN
had been attempting to effectuate a valid search, the force
utilized was grossly disproportionate to what was required
and would satisfy any balancing test. Redley v. Leavitt,
631 F.2d 358 (4th Cir. 1980); Smith v. Hearod, 498 F.2d
663 (5th Cir. 1974);-Green v. Cauthen, 379 F.Supp. 361
(D.S.C. 1974); Austin v. Hamilton, 945 F.2d 1155 (10th
Cir. 1991); Turner v. County of Washoe, 759 F.Supp. (630
(D.Nev. 1991); Vasquez, supra.
Given the claimed extensive training that officers
received in the use of force, it may be questioned whether
the assumption that police are frequently required to
make “split-second” decisions is always an appropriate
criterion for determining the reasonableness of the force.
See: Helseth v. Burch, 258 F.3d 867, 876 (8th Cir. 2001). In
the instant case, Appellants provided evidence to the
district Court and the jury of their training with respect to
“split-second” decision making abilities regarding the use
of deadly force. What the evidence showed is that this
training was ignored by the Appellant Officers. What the
App. 12
evidence also demonstrated was that, at the time of the
shooting, BETTY WILLINGHAM was obviously unarmed
and a threat to no one, thereby precluding the defense of
qualified immunity. Clem, supra at 552.
For this Court to award the Appellants with qualified
immunity is only possible if this Court accepts the lies of
the Appellants. Lies which were not accepted by the jury
inthis matter or the District Court. Appellants can only be
entitled to qualified immunity only if this court deter-
mines, in contradiction to the jury, the District Court, and
the original panel of this Court, that at the time of the
shooting, Appellee “raised the second knife to her head
and lunged, with the knife, towards Panucci” (Appellants’
Initial Brief, p. 5; Appellants’ Reply Brief, p. 1; Respon-
dents’ Brief, p. 1). In its August 15, 2001 opinion overturn-
ing the verdict and the District Court’s ruling, this Court
stated: “. . . she was not subdued; an” 3) she was stand-
ing in the door to the kitchen where she had, just moments
before, obtained-weapons with which she had tried to kill
one officer and assaulted another.” Willingham, supra at
p. 1187. At no time prior to this court’s factual conclusion
had the Appellants or anyone else alleged in any court the
possibility of the Appellee rearming herself or, as previ-
ously stated, had there been 4 determination in the
criminal proceedings that she “intended” to kill Panucci.
“Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). See also: Eastman Kodak
v. Image Technical Services, 504 U.S. 451, 456 (1992).
In its August 15, 2001 opinion, this Court stated “Both
Loughnan and Beucler fired two ‘double-taps’ at Plain-
tiff.... No argument was made at trial or on appeal that
App. 13
the practice of shooting a ‘double-tap’ itself constitutes
excessive force.” Willingham, supra at p. 1182. Such a
statement demonstrates that, unlike the jury and the
District Court, this Court did not fully evaluate the ac-
cepted evidence in the light most favorable to the Appellee.
If the Appellee was doing what the Appellants have
alleged to the jury, the district court, this Court and the
United States Supreme Court, it would be irrelevant how
many bullets were fired at Ms. WILLINGHAM. What she
proved to the District Court and the jury was what any
reasonable officer under the same circumstances would
know: You cannot shoot an unarmed woman once, let
alone eight times, when she poses a threat to no one. —
BETTY WILLINGHAM proved this through her testi-
mony, the testimony of Stanley Williams, the proven
inconsistencies and lies by Appellants and members of the
City of Boynton Beach Police Department, the testimony
of both Appellee’s and Appellants’ police experts, both
former police chiefs, and most importantly, the physical
evidence.
App. 14
CONCLUSION
For the foregoing reasons, the Appellee respectfully
submits that this Court’s August 15, 2001 decision should
be reversed and that the District Court’s judgment entered
in her favor should be affirmed as to Appellants BEU-
CLER and LOUGHNAN in every respect. :
Respectfully submitted,
/s/ Barbara A. Heyer
BARBARA A. HEYER
FLORIDA BAR NO: 346691
HEYER & ASSOCIATES, P.A.
1311 S.E. 4th Avenue
Fort Lauderdale, Florida 33316
(954) 522-4922/(561) 833-1068
FAX NO: (954) 522-4955
Counsel for Appellee
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.