Appendix — Glenn v. City of Columbus

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APPENDIX

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APPICENDIX A

IN THR UNTTED STATES COURT OF APPEAI

POR THE ELEVENTH CIRGOUT

No. O9-1107%

I). ¢ Docket No. O7-00052-CV-CDIL-4

lhouled April 20, 2010)

Appeal from the United States District Court

for the Middle District of Georgia

“(April 20, 2010)

Before BLACK, MARCUS and HIGGINBOTHAM,

Circuit Judges.

PER CURIAM:

In this tragic excessive force case, Columbus,

Georgia, police officers Gary Bolen, Kenneth Hudson,

Joseph Coats, and Gregory Touchberry appeal the

district court’s denial of their motion for summary

judgment on the basis of qualified immunity. The

representatives of Lester Zachary’s estate claim that

Officer Coats and Sergeants Touchberry and Hudson

violated Zachary’s rights under the Fourth

Amendment when they fatally shot him with a

beanbag gun in the early morning hours of April 4,

2005. The estate also says that Officer Bolen violated

Zachary’s constitutional rights when he prepared a

training manual that incorrectly advised officers to

aim the beanbag gun at the target’s center mass at

distances of twenty to forty feet.

After thorough review, we conclude that the officers

are entitled to qualified immunity. The officers’ use of

a beanbag gun under the tense and dangerous

circumstances of this case was not clearly established

* Honorable Patrick E. Higginbotham, United States Circuit Judge

for the Fifth Circuit, sitting by designation.

to be illegal. Accordingly, we reverse the denial of

qualified immunity and remand _ for further

proceedings consistent with this opinion.

We review de novo a district court’s disposition of

a summary judgment motion based on qualified

immunity. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th

Cir. 2002). Summary judgment is appropriate if “there

is no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of

law.” McCullough v. Antolini, 559 F.3d 1201, 1204-05

(11th Cir. 2009) (citation omitted). Moreover, we are

“required to view the facts and draw reasonable

inferences in the light most favorable to the party

opposing the [summary judgment] motion.” Scott_v.

Harris, 550 U.S. 372, 378 (2007) (citation and

quotation marks omitted) (alteration in the original).

Because the plaintiff is deceased, and because Helen

Stephens, the only other non-officer witness to the

entire event, could not recall the incident when she

was deposed, we necessarily derive many of the facts

from the officers’ accounts of the shooting and from the

911 transcript. Nevertheless, “where there is a

discrepancy between the statements of the defendants,

we have resolved the dispute by using only those

statements most favorable to the plaintiff.”

McCullough, 559 F.3d at 1202.

This sad story began around 3:00 in the morning on

April 4, 2005, when Lester Zachary, a veteran plagued

with mental illness and recurring dreams of deaths he

had witnessed in wartime, awoke with bad dreams. He

called the Veteran’s Administration [“WA”} Hospital

tele-nurse line to ask for help managing the nightmare

and his anxiety. In that call, Zachary told the nurse

that he had been dreaming of killing children, and that

he was armed.

A nurse from the VA Hospital reported Zachary’s

call to the Columbus, GA 911 line. She described her

call with Zachary this way: “He called, he was

extremely upset, that nightmares woke him up,

nightmares of killing kids. He was raving. He has

slurred speech. He was talking about the kids he

killed... . And, he does have guns, and presume that

they're loaded.” The VA nurse also warned the

dispatcher that Zachary was suicidal, threatening to

kill himself with a gun.

The 911 dispatchers relayed this information to

police officers at approximately 3:13 A.M., alerting

them that there was a “psychiatric problem” who had

“told calltaker that he was having dreams of 7100

1iomicide], and advisled|] he does have a gun in the

{ le] 1 ad [ed] | } I f t

residence.” A firetruck and Emergency Medical

Services drove to Zachary’s one-level house, followed

by Columbus Police Department (“CPD”) officers,

including Sergeants Hudson and Touchberry and

Officer Coats. The officers encountered a large dog tied

to the fenced-in front porch.

Between the first police dispatch and Zachary’s

shooting at 3:41 A.M., the police dispatchers called

Zachary’ house many times. At first, Zachary

threatened the officers, shouting “[ylou tell these guys

in front my door, ’m .. . going to start shooting. [1]

start shooting.” Later, Zachary answered in a calmer

tone: “Nothing wrong, baby. Nothing wrong, I’m fine.”

Nevertheless, after the 911 dispatchers investigated

Zachary in their system, they reported to the officers

that he was classified as dangerous.

The officers and dispatchers tried to coax Zachary

and his common-law wife, Helen Stephens, out of the

house to talk with them. Zachary left the house at

least twice, remaining on the porch, shouting, waving

his arms wildly, and pacing. He told the officers to

leave the property. He lifted his shirt to show the

officers that he was unarmed, but he warned the

officers that his dog would bite them if they

approached.

Stephens left the porch to talk with Sergeant

Hudson. She told him that Zachary was unarmed and

that she felt safe. She also told the officer that there

was a fourteen-year-old child sleeping in the back

bedroom. Zachary announced to the officers that “this

is over with” and that he was going to bed. He took

Stephens by her upper arm and “ushered” her back

into the house, shutting the door.

Worried that Zachary would retreat into the house

before he could be secured, the officers decided to

deploy the beanbag munition to subdue him. Officer

Coats positioned himself behind a car about

twenty-one feet from the porch with the beanbag gun

Hudson and Touchberry summoned Zachary out of the

house. When he emerged, Coats shot Zachary with the

beanbag gun. The round hit Zachary in the lower back.

He fell onto a couch on the porch. After Zachary tried

to push himself up, Coats shot again. The shot

ricocheted off of a flower pot on the porch, hitting

Zachary in the upper left chest. Zachary fell to the

ground. Hudson and Touchberry vaulted themselves

over the porch fence and handcuffed Zachary. The

officers charged Zachary with making terroristic

threats and acts in violation of O.C.G.A. § 16-11-37(a).'

Although he was able to walk off the porch after the

shooting, Zachary sustained serious internal bleeding.

He died two days later in the hospital.

Wille L. Glenn, the administrator of Zachary’s

estate, and Karen Zachary, Lester Zachary’s wife,

brought this suit in the United States District Court

for the Middle District of Georgia, secking to hold the

defendants Hudson, Touchberry, Coats, Bolen, Chief of

Police Richard Boren a: 1 the City of Columbus liable

under 42 U.S.C. § 1983 for violations of Zachary’s

Fourth Amendment right to be free from = an

unreasonable seizure and from excessive force. The

plaintiffs also asserted violations of the Fourteenth

Amendment's Due Process Clause, the _ First

Amendment and Fourteenth Amendment’s Equal

Protection Clause. Finally, they claimed a civil

conspiracy under 42 U.S.C. § 1985 and various torts

arising under Georgia law.

After discovery, the defendants moved for summary

judgment. On December 2, 2008, the district court

issued an order, granting the motion for summary

judgment for most of the claims, but denying qualified

' Under Georgia law, “lal person commits the offense of a

terroristic threat when he or she threatens to commit any crime

of violence.” O.C.G.A. § 16-11-37(a).

immunity to the officers for the Section 1983 excessive

force claims.” Glenn v. City of Columbus, Ga., No.

4:07-cv-52 (CDL), 2008 WL 5115032, at *12 (M.D. Ga.

Dec. 2, 2008).

In denying the officers qualified immunity, the

district court concluded that their use of force was not

objectively reasonable under the Fourth Amendment.

The court reasoned that the two threats of homicide

were mitigated when Zachary appeared to have calmed

some and lifted his shirt to show the officers that he

was unarmed. Id. The district court also found that

there was a jury question about whether Bolen

violated Section 1983 in delivering instructions to his

officers concerning the use of the beanbag gun. Id. at

*14. The officers timely appealed the denial of

qualified immunity. Mitchell v. Forsyth, 472 U.S. 511,

528-30 (1985).

II.

The only issue before us in this interlocutory appeal

is whether Officers Coats and Bolen and Sergeants

Touchberry and Hudson are entitled to qualified

immunity. “[Qjualified immunity offers complete

protection for government officials sued in their

individual capacities as long as their conduct violates

noclearly established statutory or constitutional rights

“ The district court also denied summary judgment for the

following claims: 1) Section 1983 claims against the City of

Columbus for excessive force; 2) assault and battery claims

against Coats, Hudson, and Touchberry; and 3) intentional

infliction of emotional distress claims against Coats, Hudson, and

2008 WL 5115032, at *20 (M.D. Ga. Dec. 2, 2008).

of which a reasonable person would have known.’

Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009)

(quoting McCullough v. Antolini, 559 F.3d 1201, 1205

(11th Cir. 2009)). Qualified immunity is intended to

protect officials carrying out their discretionary duties

from “personal monetary lability and harassing

litigation ... as long as their actions could reasonably

have been thought consistent with the rights they are

alleged to have violated.” Anderson v. Creighton, 483

U.S. 635, 638 (1987). This protection is_ broad.

“Defendants will not be immune if, on an objective

basis, it is obvious that no reasonably competent

officer would have concluded that a warrant should

issue; but if officers of reasonable competence could

disagree on this issue, immunity should be

recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Qualified immunity protects officers acting within

the scope of their discretionary authority at the time of

the incident. McCullough, 559 F.3d at 1205. If the

officer was acting within his discretionary authority --

and it is undisputed that Bolen, Hudson, Touchberry,

and Coats were -- then the plaintiff has the burden to

prove that a reasonable officer would have known that

he was violating the Constitution or the laws of the

United States. Id To defeat the presumption of

qualified immunity, the plaintiff must demonstrate

both that the facts, when viewed in a light most

favorable to the plaintiff, establish a constitutional

violation and that. the illegality of tire officer’s actions

was “clearly established” at the time of the incident.

Pearson v. Callahan, 1298.Ct. 808, 815-16, 818 (2009).

In Pearson, the Supreme Court recently held that we

are no longer obliged to conduct the qualified

immunity analysis in the sequence set forth in Saucier

v. Katz, 533 U.S. 194 (2001). Accordingly, we may now

exercise our discretion to decide which prong of the

inquiry to address first. Pearson, 129 S.Ct. at 818.

In this case, we need not address the first question

at all because, even if we were to assume that

Zachary’s shooting violated the Constitution, the

plaintiffs cannot demonstrate that the law was so

clearly established as to give the officers fair warning

that shooting a beanbag gun at Zachary under these

circumstances would have been illegal. We, therefore,

begin and end our analysis with an examination of the

second prong.

To prove that the officers violated “clearly

established statutory or constitutional rights of which

a reasonable person would have known,” Harlow _v.

Fitzgerald, 457 U.S. 800, 818 (1982), the plaintiff may

either offer case law from the relevant jurisdictions or

show that the right is one of “obvious clarity’-- i.e.,

where the officer’s conduct ‘lies so obviously at the very

core of what the Fourth Amendment prohibits that the

unlawfulness of the conduct was readily apparent to

[the official], notwithstanding the lack of fact-specific

case law’ on point.” Oliver, 586 F.3d at 907 (quoting

Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir.

2002)) (alteration in the original).

As for the case law, “we look to the precedent of the

Supreme Court of the United States, this Court’s

precedent, and the pertinent state’s supreme court

precedent, interpreting and applying the law in similar

circumstances.” Id.; McClish v. Nugent, 483 F.3d 1231,

1237 (Lith Cir. 2007); Marsh v. Butler County, 268

F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). Prior

cases need not demonstrate the illegality of challenged

conduct in the exact factual circumstance. Hope v.

10a

Pelzer, 536 U.S. 730, 739 (2002). Rather, the issue is

“whether the state of the law [on April 4, 2005] gave

respondents fair warning that their alleged treatment

of [Zachary] was unconstitutional.” Id. at 741;

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

1278 (llth Cir. 2004). “This inquiry ‘must be

undertaken in light of the specific context of the case,

not as a broad general proposition.” McCullough, 559

F.3d at 1205 (quoting Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002)).

“[A] claim of ‘excessive force in the course of

making [a] .. . ‘seizure’ of [the] person . .. [is] properly

analyzed under the Fourth Amendment’s ‘objective

reasonableness’ standard.” Scott v. Harris, 550 U.S.

372, 381 (2007) (quoting Graham v. Connor, 490 U.S.

386, 388 (1989)) (alterations in the original); Lee, 284

F.3d at 1197. When determining whether the force

used to effect a seizure is reasonable for Fourth

Amendment purposes, a court must balance “the

nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the

countervailing governmental interests.” Graham, 490

U.S. at 396. We necessarily consider several factors in

the calculus, including “the severity of the crime at

issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he

is actively resisting arrest or attempting to evade

arrest by flight.” Id. “The ‘reasonableness’ of a

particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Id. This

standard allows for an understanding that reasonable

officers may incorrectly perceive the seriousness of a

threat: “[t}he calculus of reasonableness must embody

allowance for the fact that police officers are often

lla

forced to make _ split-second judgments -- in

circumstances that are tense, uncertain, and rapidly

evolving -- about the amount of force that is necessary

in a particular situation.” Id. at 396-97

To begin with, there is no case in either the United

States Supreme Court, the Supreme Court of Georgia,

or in the United States Court of Appeals for the

Eleventh Circuit that comes close to identifying the

illegality of the officers’ use of force in these factual

circumstances. First, there is no case involving

beanbag munitions in any of the relevant courts. The

plaintiff principally relhes upon the Ninth Circuit's

beanbag case, Deorle v. Rutherford, 272 F.3d 1272 (9th

Cir. 2001), to establish that the officers violated clearly

established law. Despite factual similarities, the

California case cannot provide fair warning to the

officers in Columbus, Georgia, because, again, in this

Circuit, only cases from the pertinent state supreme

court, the United States Supreme Court, or the

Eleventh Circuit can clearly establish the law.’

The case is also factually distinguishable. In Deorle, Officer

Rutherford fired a beanbag gun at a psychologically troubled man

who had been threatening to commit suicide and had been acting

erratically. Deorle v. Rutherford, 272 F.3d 1272, 1275-78 (9th Cir.

2001). Although Deorle had been holding a hatchet, a crossbow,

and a can, he had discarded the weapons at the officers’ request

Id. at 1276-77. Rutherford shot nevertheless, hitting Deorle in the

face, fracturing his skull, and dislodging his left eye. Id. at 1278.

Because the threats the officers faced in this case differed

substantially from those found in Deorle, the facts give yet

another reason why Deorle could not “fairly warn” the officers of

a potential constitutional violation in these circumstances. In

Deorle, the officers had full view of Deorle throughout the incident

and could assess the threat he posed to himself. In sharp contrast,

here, the officers feared allowing Zachary to retreat back into the

l2a

Nor is there any roughly analogous cause law that

would suffice to put the officers on notice of the

illegality of their conduct in these “tense, uncertain”

circumstances. On April 4, 2005, there were no cases

in the relevant jurisdictions on the use of less than

deadly force (here a beanbag munition) to subdue a

suspect who had threatened to shoot at officers who

were in front of his house, spoke about killing children,

and threatened suicide.* There were reported case:

involving handguns, see, e.g., Carr v. Tatangelo, 338

F.3d 1259 (11th Cir. 2003), and a case involving the

use of a Taser gun, see Draper v. Reynolds, 369 F.3d

1270 (11th Cir. 2004), but this weapon (a beanbag gun)

hes in the unwashed middle somewhere between

deadly force and the use of a ‘l'aser fun

house, where he might have weapons hidden and a child

asleep

“The closest factual case involving the use of less than lethal

munitions is Mercado vy. City of Orlando, 407 F.3d 1152 (11th Ci

2005), where a panel of this Court held that the officers used

excessive force in shooting a baton gun at the head of man

threatening tocommit suicide. However, the Mercado opinion wa:

issued on April 29, 2005, a few weeks after the incident. It cannot

be considered for the purposes of whether the officers’ action:

were clearly established to be illegal at the time of the shooting

In any case, Mercado is factually distinguishable because the

victim in that case “was not committing a crime, resisting arrest

or posing an immediate threat to the officers at the time he wa

shot in the head.” Id. at 1157-58. Here, the officers had probable

cause to arrest Zachary for making terroristic threats in violation

of O.C.G.A. § 16-11-37(a). The officers also perceived a real threat

to the child in the house and to Stephens as well. Finally, itis not

at all clear that the use ofa baton gun was equivalent to the use

of a beanbag munition

lor the clearly established prong, the district

court’s opinion cites only to ‘Tennessee yv. Garner, 47]

U.S. 1, 11-12 (1985), for the proposition that “(t]he use

of deadly force to prevent the escape of all felony

suspects, whatever the circumstances, 1:

constitutionally unreasonable. 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.’

Id. at 11. However, Garner itself held that 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.’

Id. When there is “threatened infliction of seriou:

physical harm, deadly force may be used if necessary

to prevent escape, and if, where feasible, some warning

has been given.” Id. at 11-12

The district court's reliance on Garner is misplaced

first, Garner is distinguishable, because, instead of

merely preventing the “escape” of a non-threatening

felon, the officers in this case used force to prevent

threatened harm against a child, whom the officer:

identified as the fourteen-year-old sleeping in the

house, against Stephens, or against Zachary himself

Moreover, under Garner's terms, deadly force may be

used when “the suspect poses a threat of seriou:

physical harm, either to the officer or to others.” Id. at

11. Here, the officers reasonably believed on the basi:

of the defendant's threats that he was equipped to

commit and had contemplated homicide as well as

suicide. Beyond that, and perhaps most importantly,

the use of a bean bag munition, unlike a firearm, is not

characterized us deadly foree. The bean bag was

classified by the Columbus Police Department as a

Level 6, the hivhest level use of force below dead)

force, and was authorized “when deadly force is not

justified, but empty hand control and OC) [pepper

pray) 3 not uliscrentin etlecting® ar mrest

‘The plaimtall LISO irgu that Lunds ren

MebDamicl, 814 F.2d 600 (11th Ci 1987), and Pablo

Hernandez v. City of Miami, 402 Ff Supp.2d 1375 (S.D

Mla. 2004), clearly establish the law. Again, we are

unpersuaded. In Lundpyren, where officer hot store

owners witha handyun, a panel of this Court held that

hooting re | t) pected elon Who W «at appar ntly

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16a

At3:34 A.M., when Stephens told Sergeant Hudson

that there was a fourteen-year-old child asleep in the

house, the new information increased the palpable fear

that there was still another potential victim in the

house. Similarly, when Zachary “ushered” Stephens by

her upper arm into the house at 3:37 A.M., he gave the

officers further reason to fear that deadly force would

be used.

Moreover, Zachary’s actions on the porch were --

even taking the facts in the light most favorable to the

plaintiff -- belligerent. and unpredictable. Although

Zachary did show his empty waistband, he shouted for

the police officers to leave and never came off of the

porch. This is not a case where the victim was

remotely restrained or compliant. See Lewis, 561 F.3d

at 1292. Indeed, this case stands in contrast to those

where we have denied qualified immunity to officers

who used force once a subject was secured. See, e.g.,

Vinyard, 311 F.3d at 1348 (denying qualified immunity

where an officer used force and pepper spray on a

suspect who was “under arrest and secured with

handcuffs and in the back seat. of the patrol car”); Lee,

284 F.3d at 1200 (denying qualified immunity to an

officer who beat che victim’s head against the police

car after she was handcuffed); Priester, 208 F.3d at

923-24, 928 (denying qualified immunity to an officer

who ordered a dog attack on a defendant who was

subdued on the ground).

Ultimately, this is one of those tragic, mistaken

cases 1n the “hazy border between permissible and

forbidden force.” Smith v. Mattox, 127 F.3d 1416, 1419

(llth Cir. 1997). Quite simply, there was no clearly

established law at the time that would have put

Officer Coats and Sergeants Hudson and Touchberry

on notice that the use of a beanbag munition in these

circumstances violated the Fourth Amendment.

The district court’s denial of Officer Bolen’s claim

for qualified immunity likewise fails on the clearly

established prong.” The case law from the relevant

jurisdictions teaches us nothing about safe distances

for shooting a beanbag gun. We are also hard pressed

to describe this case as one of “obvious clarity.”

This is a close case, and where the officers’ actions

were not clearly established to be unconstitutional,

and reasonable officers could disagree, the officers are

afforded qualified immunity. Accordingly, we

REVERSE and REMAND for proceedings consistent

with this opinion.

REVERSED and REMANDED.

’ Officers facing supervisory liability claims are also entitled to

qualified immunity unless the plaintiff proves a violation of a

clearly established Constitutional right. See, e.g., Harper v.

Lawrence County, Ala., 592 F.3d 1227, 1235-36 (11th Cir. 2010).

18a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

CASE NO. 4:07-CV-52 (CDL)

[Filed December 2, 2008]

WILLIE L. GLENN (as Personal

Representative of the Estate of

Lester Zachary), and KAREN

ZACHARY (Individually, and As

Next Friend of Lester Zachary),

Plaintiffs,

CITY OF COLUMBUS, GEORGIA/

CONSOLIDATED GOVERNMENT OF

COLUMBUS, GEORGIA, RICHARD BOREN

(Individually, and in his

Official Capacity as Chief of

Police), GARY A. BOLEN )

(Individually, and in his )

Official Capacity), KENNETH )

HUDSON (Individually, and in his )

Official Capacity), JOSEPH COATS )

(Individually), GREGORY )

TOUCHBERRY (Individually), and

— — — — — — — — ~~ — — — —

19a

JOHN DOE (1-3), )

Defendants. )

ORDER

This action arises from the death of Lester Zachary

(“Zachary”). Zachary died after a stand-off with

Columbus police officers during which Zachary was

shot twice with a beanbag munition. Plaintiffs seek to

hold Defendants liable under 42 U.S.C. § 1983

(“§ 1983”) for violating Zachary’s Fourth Amendment

rights to be free from unreasonable seizures and from

the use of excessive force. Plaintiffs also contend that

Defendants’ actions give rise to a Fourteenth

Amendment substantive due process claim, a civil

conspiracy claim under 42 U.S.C. § 1985(3), a First

Amendment claim, an equal protection claim, and

various claims under Georgia law.

Presently pending before the Court is Defendants’

ar ; , ‘

Motion for Summary. Judgment (Doc. 39).° For the

reasons set forth below, Defendants’ motion is granted

' Plaintiffs made motions to exclude Defendants’ reply brief, reply

regarding the statement of material facts and affidavits submitted

with their reply brief (Docs. 58 & 59). As discussed at. the

November 5, 2008 hearing on the summary judgment motions, the

Court finds that Plaintiffs’ motions to exclude are without merit,

and the Court denies those motions. The Court will therefore

consider Defendants’ reply affidavits to the extent they are

relevant, and the Court will] consider Defendants’ reply briefing to

the extent it is helpful

20a

in part and denied in part.” As discussed below, the

Court finds that genuine issues of material fact. exist

as to the following claims:

Plaintiffs’ § 1983 claims against Columbus for

excessive force.

Plaintiffs’ § 1983 individual capacity claims

against Bolen, Coats, Hudson and Touchberry

for excessive force.

Plaintiffs’ assault and battery claims against

Coats, Hudson and Touchberry.

Plaintiffs’ intentional infliction of emotional

distress claims against Coats, Hudson and

Touchberry.

The Court grants Defendants’ motion for summary

judgment as to the remaining claims.

SUMMARY JUDGMENT STANDARD

Summary judgment may be granted only if “the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuin

issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). A central purpose of the summary judgment

rule is “to isolate and dispose of factually unsupported

Plaintiffs make a “Counter-Motion” for Summary Judgment

(Docs. 48 & 51). As discussed below, the Court finds that genuine

issues of material fact exist on each of Plaintiffs’ surviving claims,

so summary judgment is not approprtate, and Plaintiffs’ motion

is denied.

21a

claims or defenses|[.]” Ce/lotex Corp. v. Catrett,477 U.S.

317, 323-24 (1986).

The party moving for summary judgment has the

burden to show that there is no genuine issue of

material fact. See id. at 323. To meet this burden, the

movant may point the court to “affirmative evidence

demonstrating that the non-moving party will be

unable to prove its case at trial.” Fitzpatrick v. City of

Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) Gnternal

quotation marks and citations omitted). In the

alternative, the movant may show “that there is an

absence of evidence to support the nonmoving party’s

case.” Celotex Corp., 477 U.S. at 325. This is because “a

complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Jd. at 323.

Once the summary judgment movant meets its

burden, the burden shifts and the nonmoving party

must produce evidence to show that there ts a genuine

issue of material fact. See Celotex Corp., 477 U.S. at

324. The nonmoving party “must go beyond the

pleadings,” td., and point the Court to “specific facts

showing a genuine issue for trial.” Fed. R. Civ. P.

56(e)(2); accord Celotex Corp., 477 U.S. at 324. The

nonmoving party is not required to produce evidence in

a form that would be admissible at trial, but it must

point to some evidence to show a genuine issue of

material fact. Jd. Such evidence may be in the form of

affidavits, depositions, answers to interrogatories or

admissions on file. Celotex Corp., 477 U.S. at 324;

accord Fed. R. Civ. P. 56(e).

The movant is entitled to summary judgment if,

after construing the evidence in the hght most

22a

favorable to the nonmoving party and drawing all

justifiable inferences in favor of the nonmoving party,

no genuine issues of material fact remain to be tried.

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). It is not enough to have some

alleged factual dispute; there must be a genuine issue

of material fact to defeat a motion for summary

judgment. Anderson, 477 U.S. at 247-48. A fact is

material if it is relevant or necessary to the outcome of

the suit. Anderson, 477 U.S. at 248. A factual dispute

is genuine if the evidence would allow a reasonable

jury to return aé_e—verdict for the nonmoving

party—there must be more than “some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); accord Anderson, 477 U.S. at 248.

FACTUAL BACKGROUND

Viewed in the light most favorable to Plaintiff, the

record reveals the following:

Il. The Parties

Lester Zachary (“Zachary”), a black male, died after

a stand-off with Columbus Consolidated Government

(“Columbus” or “the City”) police officers during which

he was shot twice with a beanbag munition. Plaintiff

Glenn is the personal representative of Zachary’s

estate, and Plaintiff Zachary is Zachary’s widow.

Defendant Boren, a white male, is, and was during

the relevant timeframe, the police chief of Columbus.

During the relevant timeframe, Defendant Bolen was

the Columbus Police Department’s (“CPD”) assistant

coordinator for in-service training. Defendant Hudson,

20a

a white male, is, and was during the relevant

timeframe, a CPD sergeant. Defendant Coats is, and

was during the relevant timeframe, a CPD officer.

Defendant Touchberry is, and was during the relevant

timeframe, a CPD sergeant.

Plaintiffs bring official and individual capacity

claims against Boren, Bolen and Hudson. The official]

capacity claims are considered claims against

Columbus. See Smith v. Allen, 502 F.3d 1255, 1272-73

(11th Cir. 2007) (official capacity suit is another way of

pleading an action against the entity of which an

officer is an agent). Plaintiffs’ claims against Coats and

Touchberry are individual capacity claims.

Il. Zachary Calls the VA and the VA Calls

Columbus 911

A little after 3:00 a.m. on April 4, 2005, CPD 911

call taker Ashley Joiner received a ca}! from a nurse at

a Veterans Affairs (“VA”) Medical Center in Ohio. The

VA nurse told Joiner that a Columbus man, Zachary,

had called in a plea for help:

He called, he was extremely upset, that

nightmares woke him up, nightmares of killing

kids. He was raving. Ic has slurred speech. He

was talking about the kids he killed. He was

manic, unable to focus. Just totally whacked

out. And he refuses to go to the V.A. Emergency

Room because he hates hospitals. Anyway,

24a

somebody’s got to go out there. And, he does

have guns, and presume that they’re loaded.”

(ex. F. to McDaniel Dep. at 1, Jan. 8, 2008, 911 Tr.,

Apr. 4, 2005 {hereinafter 911 Tr.].)* The nurse told

Joiner that Zachary was “totally crazy” and that he

had “a bunch of loaded guns in the house.” (U/d.) The

nurse gave Joiner Zachary’s telephone number and

address, 2420 Gould Street in Columbus. Joiner typed

the information she received from tie VA nurse into

CPD’s dispatch computer system, which could be

accessed by other CPD 911 workers, including 911]

shift supervisor Frances McDaniel. Joiner’s initial

comments stated that Zachary was contemplating

suicide, although the statement was later retracted

and changed to “psychiatric.” (McDaniel Dep.

22:8-23:18.) Joiner’s initial comments also stated that

Zachary had guns in his house. Ud. 24:3-13.) McDaniel

relayed the information provided by Joiner to CPD

officers.

* Plaintiffs contend that Zachary never told the VA nurse he had

guns, but Plaintiffs offer no evidence in support of this contention

Plaintiffs object to Defendants’ use of the 911 Transcript,

arguing that it is hearsay and that it has not been properly

authenticated. The Court rejects these arguments. Defendants

produced evidence that the 911 tape was transcribed to the best

of the transcriptionist’s ability and that CPD kept the 911

Transcript in the ordinary course of business. (Gasaway Aff

17 4-5, Sept. 4, 2008; Rowe Aff. J 3, Sept. 12, 2008.)

25a

Ill. Dispatch of Columbus Officers to

Zachary’s House

CPD dispatchers sent a fire engine, an ambulance

and two police units to Zachary’s location, 2420 Gould

Street in Columbus. In addition, Officer Seth Graham,

who was not officially dispatched, responded to

dispatch to say he was close to the house, and he went

over to the house. McDaniel, who dispatched the police

officers, stated over the police radio” that it was a

psychiatric problem and that the caller had dreams of

“seventy one hundred,” which means _ homicide.

McDaniel told the officers that Zachary had a gun in

the residence. (911 Tr. 5.) McDaniel ran a computer

history on Zachary, and she found one Lester Zachary

in the system. The report gave Zachary’s birth date

and stated that Zachary was a black male. It also came

back with a caution highlight, meaning that Zachary

was dangerous.” (/.g., McDaniel Dep. 26:15-23.)

McDaniel ran a computer history on the Gould Street

address and found that someone named Lester had

called 911 in February 2008 regarding domestic

violence with a weapon. (Ud. 33:1-25.) McDaniel stated

over the police radio that there was a Lester Zachary

in the system and that the report said he was

dangerous. (911 Tr. 17.)

‘All ofthe officers responding to the scene had access to the police

radio communications

” Plaintiffs contend that the report does not show that Zachary

was dangerous, but it is undisputed that McDaniel told the police

officers over the radio that Zachary was dangerous. (See 911 Tr

17.)

26a

IV. 911 Communication with Zachary

Joiner, the 911 call taker, contacted Zachary by

telephone at 3:15, using the number the VA nurse gave

her as Zachary’s number. (/d. at 5.) Joiner told

Zachary that she was calling from 911 and that she

had received a call from the VA nurse. Zachary

acknowledged that he had spoken with the VA nurse

and told Joiner that he was still alive, that the dreams

were back and that he did not want to talk to 911

about it. Ud. at 5-6.) He hung up the telephone. At

3:17, McDaniel contacted Zachary by telephone

Zachary said “Look here, ma’am. You tell these guys in

front my door, I’m I’m going to start shooting. V1)

start shooting ... get these guys out from my door,

man.”’ Ud. at 7.) McDaniel called Officer Graham,

whom she believed to be closest to the scene, to tell

him to stand back because Zachary was threatening to

shoot. Ud. at 8.) She also announced over the police

radio that Zachary was threatening to shoot if the

responders did not move away. (/d. at 9; Graham Dep

40:25-41:7, Jan. 18, 2008.) While he wus on his way

Plaintiffs contend that Zachary never said anything about

shooting anyone, citing the unsworn police statement of Helen

Stephens, who was with Zachary on the night of the incident and

did not hear him say such things. (ix. 5 to Pls.’ Statement of

Disputed Material Facts at 21, Helen Stephens Statement, Ap:

13, 2005 (hereinafter Stephens Statement|.) However, Stephen

also stated that she was not in the same room us Zachary during

the entire incident. Ud. at 17-14.) When asked about the incident

under oath, Stephens did not recall anything about the evening in

question—not the shooting, not the police coming to the house, not

the 911 calls. (Stephens Dep. 37:6-24; 486:25-39:25, Keb. 20, 2008. )

In any event, it is undisputed that McDaniel told CPD officer

over the police radio that Zachary threatened to start shooting

(911 Tr. 8

over to the scene, Hudson heard McDaniel say that

Zachary was threatening to shoot if officers did not

leave hi property (Hudson Dep 103°9-6. Jan

ZO0%. )

At. 3:29, McDaniel called Zachary and asked for

“Lester,” and Zachary said, “yes sir.” (911 ‘Tr {)

McDaniel, referred to Zachary by his first name.

Lester, several other times during the conversation

McDaniel asked Zachary what was wrong. Zachary

rephed, “Nothing wrong, baby. Nothing wronyp, I’m

fine.” McDaniel, who had learned that the telephone

was registered to Helen Stephens, asked if Stephens

was there. When Zachary replied that she was,

McDaniel asked to speak with her. Zachary initially

refused but then put Stephens on the phone. Stephen:

told McDaniel that she was Zachary’s wife, that

Zachary was okay and that Zachary did not have a

gun. Stephens also said she wa not feeling

threatened, that she would put up the dog, which was

chained to the porch, and that she would open the door

for police. At 4:50, McDaniel stated over the police

radio that she had mude contuct with Zachury's wif

that the wife said there was no pun in the house, that

Zachary had calmed, ana that the wife would open thi

door for the office r

V. The Stand-Off

While 911 was communicating with Zachary and

Stephen: lludson arrived at 2420 Gould Street

established a perimeter and attempted to start

dialozvue with Gachary At least eight officer

including Coats and ‘Touchberry, responded to thi

scene, Zachary came out on the Opel front por h al

4:31 but then went back inside. Zachary came out on

the porch again at 4:32, waving his hands in the au

and pacing onthe porch, He lifted up hi birt and told

officers that he did not have a gun. Zachary repeatedly

told the officers that he had done nothing wrong and to

get olf his property, and he told them several tin

that he did not have a pun, although some of the

officers testified that Zachary was also “ranting and

raving mcoherently.” (eoy., Hudson Dep 20-15-17.) Tt

is undisputed that Zachary did not yell any threats at

the officers on the scene and that the offteers on the

scene did not ee a weapon in Aachary hand ‘Thy

officers did, however uspect that a yun could be

hidden somewhere on the porch or just inside the tront

door. It is undisputed that a large dog remained

chained on the porch and that no officers attempted t

go upon the porch. According to Hudson, Zachary said

that the doy would bite (Iidudson Dep 119: 1-23

ZAachary never set the doy on the officers or moved t

unchain the doy althouyh be wa it Cary close to thr

dou

rote phen came down trom the poreh Lospeak with

Hudson. Stephens told Hudson that Zachary had been

drinking but that everything was all right, that there

were no weapons in the house, und that she did not

fool threatened. She also told Hudson that there wa

a fourteen-year-old in the back bedroom of the house

lludson Dep. 145.24 ») Jludson did not belheve

' Lephen Wierd sda aid that she was notin danves

(Lludson Dep 1.3!) | ()p)ttud rire ived the ubstaAnce

Phagsotill " ‘ er iVUl f j

pee oon bee j t ol } i | {

ii evens Cheat sti it ley led t t wt

Hicers t ! ale { i

of this conversation over the police radio and told

‘Touchberry about the conversation. At & $d tticdsson

called back to GILT over thi poles radio and asi

Melaniel exactly what Aachary had id to the VA

nurse, and McDamel reported that Zachary told the

VA nurse that “he was having dreams of killing

Children, and that be ha eal gvtgea ara Gbeee brornve

(911) Pr. 26.) Hludson responded over the radto that the

wil nd there was no pom, that she did not feel

threatened and that she had not heard Aachary make

any threats. Hudson then asked MelDamel whethes

“Zachary told her he was poms to start shootin rid)

Me Daniel renbed that te lad. dad

\t $47, both Zachary and Stephes ere on thr

poreh. Zachary yelled out to the officers that “thas 1

over with and that he was porn to bed Zachary held

tephens by her upper arm and “ushered ter back

mito the house and shut the door. There is no evidenes

pre tba pore ent record that the officers ordered Zachary

Lo Corn down from the porenh ! this Achat

disobeyed an order ft p> the olfiecr

Vi Dhe Shooting

lhudson and Touchbers feeppe aclere

i » be phos rhotiniitia Phe lola ( if Liat

Zachary came out of the house bo, he should dey

» Pte bean (|

ilion 1 cad threat

dobis ephen rithe ef rdinv to Cont AB sadl

ral || bers nottolet Z | (| a be

Ltie er t reat ile! if (lout, Dey

1) df iat if th biel guest p cilterspate

oe | bois piarnats ’

30a

a beanbag munition at Zachary.’° A beanbag munition

is a small cloth sack sewn shut around lead pellets,

with sections of the sack made into small trailers that

cause the beanbag to fly in a stabilized trajectory. CPD

deploys beanbag munitions using a Remington 870

shotgun. ‘Touchberry instructed Coats where to

position himself. Neither Touchberry nor Hudson gave

Coats a specific instruction regarding where on

Zachary’s body to aim the beanbag munition.

Hudson and Touchberry called for Zachary to come

back out of the house. Zachary came out onto the porch

at approximately 3:41, and Coats was positioned about

20 or 21 feet from Zachary. Hudson and Touchberry

called out for Coats to take a shot. Zachary’s lower

body was obscured by the porch railing. According to

Coats, he targeted Zachary’s left shoulder blade.

However, the shot hit Zachary in the spleen area."

Zachary fell down onto a couch on the porch, but he

tried to get up. Coats took another shot and hit

Zachary in the upper left chest. Zachary fell to the

floor and stayed down.

Vil. The Aftermath

After the second shot, Hudson and Touchberry

scaled over the porch railing and took Zachary into

thus should not have been the one to deploy the beanbag

munition. However, Defendants presented unrebutted evidence

that Coats scored well on all of his shooting exercises. (Bolen Aff.

qd 6-7 & Ex. 1, Sept. 15, 2008.)

'' Coats contends that Zachary moved, so even though Coats

aimed for the shoulder blade he hit the spleen area

gla

custody. Zachary, who did not appear to be bleeding

externally and was able tv walk on his own, was

handcuffed and taken to the hospital in a squad car.

Zachary was charged with making terroristic threats

in violation of O.C.G.A. § 16-11-37, based on his

staterments to the 911 operator that he would start

shooting if the responders did not leave his property.

Defendants do not appear to dispute that the arresting

officers did not have personal knowledge of the

conversations between Zachary and the VA nurse or

Zachary and CPD 911 personnel. Defendants do not

dispute that the officers did not obtain a warrant

before deploying the beanbag munition. It is

undisputed that Boren did not know about the

shooting until several hours after it occurred.

Zachary died at. the hospital on April 6, 2005. A

Georgia Bureau of Investigation medical examiner

conducted an autopsy and concluded that the cause of

Zachary’s death was “internal bleeding due to blunt

force trauma of the spleen due to impact from a

beanbag (fired from a gun).” (Ex. 2 to Lehman Dep.,

Mar. 25, 2008, Autopsy Official Report 6.) The medica!

examiner also found that one of Zachary’s ribs was

broken and that Zachary had abrasions where the

beanbags hit him.

Hudson and his supervisor, Lt. Gordon Griswould,

prepared a use of force report documenting the April 4

shooting. The CPD Office of Professional Standards

(“OOPS”) investigated the shooting. Hudson and Coats

were placed on administrative leave pending the

outcome of the investigation. Following — the

investigation, OOPS submitted a report of the incident

to Chief Boren, recommending that the officers be

exonerated.

32a

VIli. CPD Policies

A. CPD Use of Force Policy

According to CPD policy, officers should use only

the minimum force necessary to perform their duties

effectively. CPD has a “Foice Continuum” that

“provides a series of responses which are available for

officers when confronting a subject.” (Ex. 2 to Boren

Dep., Apr. 21, 2008, CPD General Order on

Non-Deadly Force/Less Lethal Munitions § 3-1.7.) The

force continuum ranges from Level One, “Officer

Presence,” to Level Seven, “Deadly Force.” ‘he use of

less lethal munitions is Level Six, one step below

deadly force. (/d.) Officers are directed to consider the

totality of the circumstances in determining how to

respond to a situation, including the age, sex, size,

skill level and number of officers and/or subjects. The

officers should also evaluate additional factors,

including proximity to a firearm, ground position and

imminent danger.

According to CPD policy, “less lethal munitions,”

including the beanbag munition “are designed to

incapacitate hostile subjects without causing death or

serious injury.” (Ex. 6 to Bolen Dep. 5, Feb. 21, 2008,

CPD Order on Less Lethal Munitions § 3-1.9 7 A

(hereinafter CPD LLM Order].) The policy notes that

the use of less lethal munitions “may result in serious

injury and/or death even when properly deployed.”

(Jd.) Only officers who have trained and qualified with

less lethal munitions may deploy them. The policy

provides that situations that may be suitable for

deployment of less lethal munitions include “subjects

who are armed with a knife or similar weapon where

there is not an immediate threat to the officer or a

third person” and “persons who may be armed with a

knife, firearm, or other weapon who may attempt to

force an officer into using deadly force in order to

achieve their suicide.” Ud. at 8 J D.)

Bolen created CPD’s “Less Lethal Munitions”

training regarding the beanbag munition. To prepare

for this job, Bolen attended a Specialty Impact

Munitions Instructor Training Course at Armor

Holdings (“Armor”), where he _ received training

materials on how to structure and develop policies and

guidelines for beanbag munitions. These Armor

materials provided guidelines and recommendations

concerning the distance and targeting of the beanbag

munition, based upon Armor’s research. Bolen was

certified as an instructor to train officers on use of the

beanbag munitions.”

Bolen’s training program was released in May

2001. The training stated that “extreme caution”

should be exercised at distances of less than ten feet

“due to the high possibility of a fatal outcome.” (CPD

LLM Order 3.) The training also stated that at

distances of ten to twenty feet, officers should “avoid

the head, neck, spleen, liver, and kidney areas,”

although the training did not include any explanation

of where the liver, spleen and kidneys are located. (/d.)

The training further provided that at distances of

twenty to forty feet, “the target area should be the

*? Bolen’s certification expired on February 28, 2002. He was not

recertified until May 6, 2005.

center mass.”’’ (Jd.) In contrast, the Armor Holdings

2003 Specification Manual’ recommends that at

distances of ten to twenty feet and twenty to thirty feet

officers should target “lower extremities unless deadly

force is warranted.” (Ex. 10 to Bolen Dep. 6, 2003

Armor Holdings Specification Manual [hereinafter

2003 Armor Manual] (emphasis added).) The Armor

training materials Bolen received in 2000 did state

that while the buttocks and thigh were the primary

target areas, secondary target areas included muscie

areas, including the shoulder, biceps, triceps and

forearm area. (Ex. 1 to Bolen Aff. 15, July 9, 2008,

2000 Armor Holdings Manual {hereinafter 2000 Armor

Manual].) Still, the Armor training emphasizes that

life supporting organs susceptible to damage from

impact “should be AVOIDED unless it is the intent to

deliver deadly force.” Ud. at 16.) The Armor training

further states that the center mass is a “last resort”

target area and should be used “to meet a level of

threat escalating to deadly force justification.” Ud. at

15.) The Armor training also states that shots to the

center mass “have the highest potential to cause

serious injury or death.” Ud. at 16.)

Later in the CPD training, there is a section called “aiming

point,” which instructs officers, “The closer you are, the lower the

aiming point.” (CPD LLM Order 10.) The training warns to avoid

the head, neck, spine, groin and hfe supporting orvans “unless it

is the intent to deliver deadly force.” Ud.) Finally, the training

notes that “[s]hots to the ‘center mass’ provide for the highest

probability of serious injury or death.” (/d.)

'* Again, Bolen’s Armor Holdings certification expired on February

28, 2002. He was not recertified until May 6, 2005. Bolen did not

update the CPD training materials during the time when his

certification had lapsed.

jua

IX. Plaintiffs’ Claims

Plaintiffs bring the following claims: (1) § 1983

claim against Defendants for unreasonable seizure in

violation of the Fourth Amendment (3d Am. Compl.

(1% 49-55 [hereinafter Compl.]); (2) § 1983 claim

against Defendants for excessive force in violation of

the Fourth Amendment (/d.); (3) substantive due

process claim against Defendants Ud. J[{ 56-67);

(4) civil conspiracy claim against Coats, Hudson and

Touchberry (/d. |] 68-78); (5) First Amendment claim

against Defendants (Jd. |] 79-88); (6) equal protection

claim against all Defendants except Bolen (Ud.

{% 89-96); (7) assault and battery claim against Coats,

Hudson and ‘Touchberry (Ud. JQ 97-100);

(8) “intentional tort” and “malicious negligence” claim

against Defendants Ud. 4] 101-103); (9) false arrest

claim against Coats, Hudson and Touchberry (d.

111 107-109); (10) false imprisonment claim against

Boren, Coats, Hudson and Touchberry (d.

Wi 110-112); and (11) intentional infliction of

emotional distress claim against Coats, Hudson and

Touchberry (7d. JJ 113-118).

DISCUSSION

I. § 1983 Fourth Amendment Claims

‘lo prevail on a § 1983 claim, Plaintiffs must prove

that Defendants, acting under color of state law,

deprived Zachary of a right, privilege, or immunity

secured by the Constitution or a federal law. See 42

U.S.C. § 1983. It is undisputed that the officers acted

under color of state law during the April 4, 2005

incident. Plaintiffs contends that the officers violated

Zachary’s Fourth Amendment rights to be free from

36a

unreasonable search and seizure and from the use of

excessive force.

A. § 1983 Standards

Plaintiffs make their § 1983 Fourth Amendment

claims against the individual officers who were on the

scene, against the supervising and training officers,

and against Columbus. Because the different classes of

defendants assert different defenses, the Court will

briefly examine the basic principles of each defense.

1. Individual Capacity Claims and Qualified

Immunity

Plaintiffs’ individual capacity claims against

Hudson, Coats and Touchberry are based upon their

direct involvement in the April 4, 2005 incident.

Plaintiffs’ individual capacity claims against Boren

and Bolen, who were not on the scene, are based upon

a theory of supervisory liability, discussed more fully

below. All of these individual defendants contend that

they are entitled to qualified immunity.

Qualified immunity shields public officers acting

within the scope of their discretionary authority from

liability so long as their acts do not violate clearly

established law. See Hope v. Pelzer, 536 U.S. 730, 739

(2002); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“The purpose of this immunity is to allow 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.” Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting

37a

Willingham vu. Loughnan, 261 F.3d 1178, 1187 (11th

yir. 2001)).

To receive qualified immunity, an officer must show

that “he was acting within the scope of his

discretionary authority when the allegedly wrongful

acts occurred.” Lee, 284 F.3d at 1194 (internal

quotation marks omitted). Here, Plaintiffs do not

appear to dispute that the officers were acting within

their discretionary authority during the events giving

rise to this action. Therefore, Plaintiffs must meet

their burden to show that qualified immunity is not

appropriate. See id. To meet this burden, Plaintiffs

must first show that, taken in the light most favorab!e

to Plaintiffs, the facts show that the officers’ conduct

violated a constitutional right. Hadley v. Gutierrez, 526

F.3d 1324, 13829 (11th Cir. 2008) (citing Saucier v.

Katz, 533 U.S. 194, 201 (2001)). If Plaintiffs do not

make this showing, there is no need for further

inquiry. See Lee, 284 F.3d at 1194. If the facts viewed

in the light most favorable to Plaintiffs do establish a

violation of a constitutional right, the Court must

determine if the right was clearly established at the

time of the officers’ conduct. Hadley, 526 F.3d at 1329

(citing Saucter, 533 U.S. at 201). A right is clearly

established if it is “sufficiently clear that a reasonable

official would understand that what he is doing

violates that right.” Hope, 536 U.S. at 739 (internal

quotation marks omitted); accord Saucier, 533 U.S. at

202. The unlawfulness of the action must be apparent

in light of pre-existing law, but the very action in

question need not have been previously held unlawful.

Hope, 536 U.S. at 739.

Since qualified immunity provides an immunity

from suit, qualified immunity questions should be

38a

resolved at the earliest possible stage in litigation.

Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

lLlowever, the protection of qualified immunity is only

warranted at the summary judgment stage if the

defendant officers can “establish that there 1s no

genuine issue of material fact preventing them from

being entitled to qualified immunity.” Johnson v.

Breeden, 280 F.3d 1308, 13817 (11th Cir. 2002). “[I]f the

evidence at the summary judgment stage, viewed in

the light most favorable to the plaintiff, shows there

are facts that are inconsistent with qualified immunity

being granted, the case and the qualified immunity

issue along with it will proceed to trial.” /d.

2. Supervisory Liability

As to Plaintiffs’ claims against the supervisors,

supervisory Officials may not be held liable under

§ 1983 on the basis of respondeat superior or vicarious

liability. Danley v. Allen, 540 F.3d 1298, 1314 (11th

Cir. 2008). Rather, supervisory liability under § 1983

occurs “either when the supervisor’ personally

participates in the alleged unconstitutional conduct or

when there is a causal connection between the actions

of a supervising official and the alleged constitutional

deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360

(llth Cir. 2003). A causal connection “can be

established when a history of widespread abuse puts

the responsible supervisor on notice of the need to

correct the alleged deprivation, and he fails to do so.”

Id. (internal quotation marks omitted). “The

deprivations that constitute widespread abuse

sufficient to notify the supervising official must be

obvious, flagrant, rampant and of continued duration,

rather than isolated occurrences.” Brown v. Crawford,

906 F.2d 667, 671 (11th Cir. 1990). A plaintiffcan also

39a

establish a causal connection by showing that. the facts

support “an inference that the supervisor directed the

subordinates to act unlawfully or knew that the

subordinates would act unlawfully and failed to stop

them from doing so.” Cottone, 326 F.3d at 1360

(internal quotation marks omitted).

3. Municipal Liability

Regarding Plaintiffs’ claims against Columbus,

Plaintiffs must show that Zachary suffered a

constitutional violation as a result of the City’s

unlawful “policy or custom.” Skop v. City of Atlanta,

Ga., 485 F.3d 1130, 1145 (11th Cir. 2007); see also

Monell v. Dep’t of Soc. Serus., 436 U.S. 658, 694 (1978).

“A policy is a decision that is officially adopted by the

municipality, or created by an official of such rank that

he or she could be said to be acting on behalf of the

municipality. ... A custom is a practice that is so

settled and permanent that it takes on the force of

law.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.

2005) (quoting Sewell v. Town of Lake Hamilton, 117

F.3d 488, 489 (11th Cir. 1997)). Only “those officials

who have final policymaking authority may render the

municipality lable under Section 1983.” Brown ov.

Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999) (per

curiam) (internal quotation marks and emphasis

omitted). Final pohcymaking authority may be

delegated, but for the municipality to be lable under

a delegation theory “the delegation must be such that

the subordinate’s discretionary decisions are not

constrained by official policies and are not subject to

review.” Id.

AQa

B. § 1983 Unreasonable Seizure Claim

Plaintiffs’ first claim is that the officers violated the

Fourth Amendment by arresting Zachary for violating

Georgia’s terroristic threats statute without probable

cause.” The Fourth Amendment gives individuals the

right to be free from “unreasonable searches and

seizures.” There is no dispute in this case that Zachary

was “seized” within the meaning of the Fourth

Amendment when he was shot with the beanbag

munition, then arrested. The reasonableness of an

arrest is “determined by the presence or absence of

probable cause for the arrest.” Skop, 485 F.3d at 1137

“Probable cause to arrest exists when law enforcement

officials have facts and circumstances within their

knowledge sufficient to warrant a reasonable belief

that the suspect had committed or was committing a

crime.” /d. (quoting United States v, lloyd, 281 F.3d

1346, 1348 (11th Cir. 2002) (per curiam)). “This

probable cause standard is practical and non-technical,

' Plaintiffs also contend that the officers violated the Fourth

Amendment by arresting Zachary without a warrant, citing

authority regarding arrests made inside a suspect’s home. While

arrests inside a person’s home may not, under the Fourth

Amendment, be made without a warrant or exigent

circumstances, see Payton v. New York, 445 U.S. 573, 590 (1980),

it is undisputed that Zachary was on the front porch, not inside

the home, when he was shot with the beanbay munition and

arrested, so the in-home arrest line of cases does not apply. See

United States v. Watson, 273 F.3d 599, 602 n.2 (5th Cir. 2001)

(“An arrest on a porch is not considered ‘inside’ the house for

purposes of determining its constitutionality under the Fourth

Amendment.”); see also Paylon, 445 U.S. at 590 (“[T]he Fourth

Amendment has drawn a firm line at. the entrance to the house

Absent exigent circumstances, that threshold may not reasonably

be crossed without a warrant.”)

41a

applied in a specific factual context and evaluated

using the totality of the circumstances.” Jd. (citing

Maryland ov, Pringle, 540 U.S. 366, 3'70 (2003))

With regard to the individual capacity claims

against the arresting officers—-Iludson, Coats and

Touchberry—the relevant question for qualified

immunity purposes is not whether the officers had

probable cause but whether they had arguable

probable cause to arrest. Zachary. “Arguable probable

cause exists where reasonable officers in the same

circumstances and possessing the same knowledye as

the Defendant|s] could have believed that probable

cause existed to arrest.” Lee, 284 F.3d at 1195 Ginternal

quotation marks omitted). “This standard recognizes

that law enforcement officers may make reasonabl

but mistaken judgments regarding probable cause but

does not shield officers who unreasonably conclude

that probable cause exists.” Skop, 485 F.3d at 1137

Whether an arresting officer possesses probable

cause (or arguable probable cause) “depends on the

elements of the alleged crime and the operative fact

pattern.” Jd. at 1137-38 (internal citation omitted)

Here, the officers contend that they had probable

cause to arrest Zachary for making terroristic threats

in violation of O.C.G.A,. § 16-11-37(a), which provides:

“A person commits the offense of a terroristic threat

when he or she threatens to commit any crime of

violence ... with the purpose of terrorizing another .

or in reckless disrepard of the risk of causing such

terror... .” The crime of terroristic threats “is

completed when the threat is communicated to the

victim with the intent to terrorize.” Armour v. State,

265 Ga. App. 569, 571, 594 8..2d 765, 767 (2004). The

message need not be directly communicated to the

WAT

victirn af the threat 3 race 1} uch a way a le

upport the inference that the speaker intended o1

expected it to be conveyed to the victim” /d. Comphass

omitted): cf. Richards vo State, 286 Ga. App. 5&0, 5&2

649 S Bb.Y4d 757, 750-51) (2007) Ginding valid search of

home based on police dispatcher’s report of a 911 call

reparding a child) being beaten and offices

on the scene corroboration with neighbors who said a

child was being beaten despite occupant my Sistemce

that there wus no child in the hon

As a preliminary matter, Plaintiffs dispute that

Aachary was the person Who made threats over the

telephone to the 911 dispatcher hiowever, the othiecr

on the scene rensonably concluded that ZAnchary wa

the same person who told McDaniel he would start

shooting the responders in front of his house. When

the ofhicers arrived on the cone atthe addr the VA

Nurse pave a Zachary! addre Live et ot fact before

them wa congruent with the information bey

provided to them by McDaniel over the police radio

Zachary matched the deseription McDaniel had piven

the officers based on MceDamiel’s computer search. ‘The

officers observed Zachary go in and out of the house

vell at them and, according to some offices rant and

McDaniel reasonably concluded that it was Laster Zachas TaILE

had made the threat to start shooting, Jomer and MeDamel both

called the te lephone oumber viven to them by the VA murse ua

Zachary’s number, and the male who answered acknowledved

speaking with the nurse and said that the miphtmares were bacl

(911 Tr. 6.) When McDanicl asked for Laster, the male who

answered said, “Ye ir’ and did not correct McDaniel when she

referred to him as Lester. Ud. at 20.) The male also confirmed that

police were outside his house atl the addre the VA nurse had

piven to Joiner as Zachary addre (/d. at 21-22.)

rave imcoherently This, combined with the presence of

Helen Stephens and the doy chamed to the poreh

reasonably led the offteer on the seene to conelude

that Zachary was the same person who had beer

peaking with McDaniel, domer and the VA curse

The next question is whether a reasonable offiecs

on the seene and possessing the same knowledge a

lludson, Coats and ‘Touchberry could have reasonably

beheved that Zachary had made a terroristie threat

based on MeDaniels communication the offtecs

knew that (1) when MeDanriel contaeted Zachary by

telephone, Zachary told her to let the re ponders an

front of bis door know that he would start shootiy

them af they did not move away, (7) Anchary wa

having dreams of killing: people, OQ Zachary may lave

aH doaded pun inside the house, and (4) the conmipurtes

report flagged Zachary as “dangerous” As discussed

above, based on therm own observations at the Carne

Lhe officer: re nsonably beheved thosit Anchury Wit thie

same person who had threatened to start shooting the

responders. Although Zachary made no threat:

directly to the offieers and told the offfeers that tie did

not have a weapon, the crime of terroristie threats wa

completed when the threat was communicated to the

officers, see Armour, 265 Ga App at idl, o94 S Ie 2d

at 7/67, and at was reasonable for MebDbansel cad the

officers to construe Zachary s statements to Melanie

as 4 threat to anfhiet harm upon the responder

standing outside of Zachary’s house if those responder

did not leave

Plamtiffs also contend that Zachary was justified mn toaksog the

Lhreat under OC GLA 163 24, whieh) permits a person bo as

the threat of force to prevent unlawful entry or attack on

44a

Based on all of this, the Court concludes that

Hudson, Coats and Touchberry had at. least arguable

probable cause to arrest Zachary for making a

terroristic threat. Therefore, Hudson, Coats and

Touchberry are entitled to summary judgment based

on qualified immunity as to Plaintiffs’ Fourth

Amendment unreasonable seizure claim. Furthermore,

Plaintiffs have pointed to no basis for helding Boren or

Bolen individually hable. Even if the officers on the

scene did not have probable cause to arrest Zachary, it

is undisputed that neither Boren nor Bolen was on the

scene, and Plaintiffs have pointed to no causal

connection between their actions and the officers’

decision to arrest Zachary for making a terroristic

threat. Accordingly, Boren and Bolen are entitled to

summary judgment based on qualified immunity as to

Plaintiffs’ Fourth Amendment. unreasonable seizure

claim. Finally, Columbus ts entitled to summary

judgment on Plaintiffs’ Fourth Amendment

unreasonable seizure claim because Plaintiffs have

pointed the Court to no policy or custom that was the

moving force behind the officers’ decision to arrest

Zachary for making a terroristic threat.

habitation. Since the officers had at ieast arguable probable cause

to arrest Zachary for making a terroristic threat, their presence

at the scene was not unlawful, and Zachary was therefore not

justified in making the threat.

C. § 1983 Excessive Force Claim

Il. Liability of Officers Hudson, Coats and

Touchberry

Plaintiffs also contend that the officers used

excessive force when they shot Zachary with the

beanbag munition. This claim must be analyzed under

the Fourth Amendment's objective reasonableness

standard. Jackson v. Sauls, 206 F.3d 1156, 1169 (t1th

Cir. 2000) (citing Graham v. Connor, 490 U.S. 386, 395

(1989)). 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.” Graham, 490

U.S. at 396. The use of force must be judged on a

case-by-case basis “from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Jd. Defendants do not

seriously dispute that there 1s at least a fact question

that shooting Zachary with the beanbag munition in

the upper torso, hitting him in the spleen area,

constituted deadly force.** It is clear that a beanbag

munition can be used as deadly or non-deadly force,

depending on the shooter’s distance from the subject

and where the subject is hit. Here, based on Coats’s

distance from Zachary and the fact that Coats targeted

Zachary’s upper body, hitting Zachary in the spleen

area, a jury could conclude that Coats used deadly

‘© Coats contends that he did not intend to hit Zachary in the

spleen. However, Coats did hit Zachary in the spleen, creating a

jury question as to whether he intended to do so. In any event, it

is undisputed that Coats aimed at Zachary’s upper body from a

distance of 20 or 21 feet, though Armor’s training materials advise

that from that distance only lower extremities should be targeted

unless deadly force is warranted. (2003 Armor Manual 6.)

46a

force. Furthermore, a jury could conclude that Hudson

and Touchberry ordered Coats to use deadly force

because although neither Hudson nor Touchberry told

Coats where to shoot Zachary, they did order him to

shoot Zachary with the beanbag munition, and they

did tell Coats where to stand so that he would be

within 20-25 feet of the porch and at a vantage point

that required Coats to target Zachary’s upper body

because Zachary’s lower extremities were obscured by

the porch railing. Therefore, the key question is

whether the officers had probable cause to use deadly

force.

Deadly force is “not constitutionally unreasonable

to prevent escape” 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[.]” Long v. Slaton, 508 F.3d 576, 580 (11th Cir.

2007) (quoting Tennessee v. Garner, 471 U.S. 1, 11

(1985)). Therefore, “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 infliction of serious physical harm,

deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been

given.” Garner, 471 U.S. at 11-12." In contrast, “[a]

police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” Garner, 471 U.S. at 11.

The Court recognizes that Garner “did not establish a magical

on/off switch that triggers rigid preconditions whenever an

officer’s actions constitute ‘deadly force,” Scott v. Harris, 550 U.S.

372, __, 127 S. Ct. 1769, 1777 (2007), but Garner does supply a

Fourth Amendment “reasonableness” test that the Court finds is

appropriate for analyzing the particular type of force used in the

particular situation confronting the officers in this action.

47a

Here, viewing the facts in the light most favorable

to Plaintiffs as the Court must do in analyzing a

motion for summary judgment, the Court concludes

that the officers’ use of force was not objectively

reasonable under the Fourth Amendment. It is true

that the officers were aware that Zachary had told

either the VA nurse or 911 that he had guns, and they

were aware that he told McDaniel that he would start

shooting if the responders did not leave. That

information is mitigated, however, by a number of

other facts collected by the officers during the twenty

or so minutes they were on the scene after the

telephonic threat to McDaniel but before the shooting.

Zachary never made any threats directly to the

officers, and he never threatened Stephens or anyone

else in front of the officers. None of the eight officers

on the scene saw a weapon in Zachary’s hands or on

his person. The officers knew that Zachary was a

“psychiatric” case. Zachary repeatedly told the officers

he had no weapons, and he lifted his shirt to show

them that there was no weapon in his waistband.

Stephens told both 911 and the officers on the scene

that she did not feel threatened, that Zachary did not

have a gun, and that Zachary had calmed. Zachary

came out onto the porch at least three times. Each

time, Zachary went back into the house, but each time,

he returned to the porch unarmed and telling officers

that he was unarmed. Before he went into the house

for the last time, Zachary told the officers he was going

to bed. After that, Zachary complied with the officers’

requests for him to come back outside, and Zachary

was still unarmed.

Weighing all of these facts, a jury could conclude

that a reasonable officer on the scene possessing the

same facts as Coats, Hudson and Touchberry would

48a

not have had a reasonable belief that deadly force was

warranted under the circumstances. Zachary was

intoxicated and loud, but he did not directly threaten

the officers, and the officers never saw a weapon in

Zachary’s hands or on his person during their twenty

or so minutes on the scene before the shooting.

Furthermore, the officers’ own actions—deploying a

beanbag munition instead of shooting Zachary with a

lethal munition—suggest that the officers on the scene

actually did not believe deadly force was warranted.

The officers contend that they did not intend to kill

Zachary; the CPD use of force continuum categorizes

the beanbag munition as non-deadly force; and the

officers were trained that the beanbag munition is

“designed to incapacitate hostile subjects without

causing death or serious injury.” (CPD LLM Order 5.)

For all of these reasons, the Court finds that

genuine issues of material fact exist as to whether

Hudson, Coats and Touchberry had arguable prebable

cause to use deadly force against Zachary. The Court

further finds that the law at the time of the shooting

clearly established that deadly force is not permitted

unless the officers have probable cause to use deadly

foree. See Garner, 471 U.S. at 11-12. Therefore, the

Court cannot decide at this stage whether Hudson,

Coats and Touchberry are entitled to qualified

immunity because certain fact issues must be decided

by a jury. See Breeden, 280 F.3d at 1317 (“[l]f the

evidence at the summary judgment stage, viewed in

the light most favorable to the plaintiff, shows there

are facts that are inconsistent with qualified immunity

being granted, the case and the qualified immunity

issue along with it will proceed to trial.”). The Court

emphasizes that it has not found that the officers are

not entitled to qualified immunity. The jury may well

49a

find that Plaintiffs’ version of the facts is not true and

that the officers did have arguable probable cause to

use deadly force. In that case, the officers will be

entitled to qualified immunity. However, because

genuine issues of material fact exist, that

determination is premature and cannot be made based

upon the pretrial! record.

2. Columbus Liability

Plaintiffs contend that the officers used excessive

force against Zachary because the City failed to train

the officers properly on the use of the beanbag

munition. “A failure to adequately train municipal

employees constitutes an actionable policy or custom

for § 1983 purposes ‘only where the failure to train

amounts to deliberate indifference to the rights of

persons with whom the lemployees] come _ into

contact.”” Cook ex rel. Estate of Tessier Sheriff of

Monroe County, Fla., 402 F.3d 1092, 1116 (11th Cir.

(alteration in original) (quoting City of Canton, Ohio v.

Harris, 489 U.S. 378, 388 (1989)). Here, Plaintiffs

point to the CPD’s written “Less Lethal Munitions”

training program as evidence of the policy of failing to

train officers adequately on the beanbag munition.

CPD delegated the task of creating the “Less Lethal

Munitions” training to Bolen, and though the “less

Lethal Munitions” training had to fit within CPD’s Use

of Force policy, the “Less Lethal Munitions” training

was based on Bolen’s own research, consisting chiefly

of Armor’s Specialty Impact Munitions Instructor

Training Course. There is no evidence in the present

record that anyone above Holen in the chain of

command reviewed the training program or made

substantive changes to it. Based on the present record,

the facts viewed in the light most favorable to Plaintiff

50a

suggest that Bolen was the City’s final policymaker for

purposes of formulating the “Less Lethal Munitious”

training. See Brown, 188 F.3d at 1290 (discussing

delegation of final policymaking authority). Even if

Bolen were not the City’s final policymaker and the

“Less Lethal Munitions” training is not an officially

adopted City policy, the fact that it is the written,

official basis for CPD’s training on the beanbag

munition suggests that it is at least a “practice that is

so settled and permanent that it takes on the force of

law.” Cooper, 403 F.3d at 1221 (internal quotation

marks omitted).

Having found that a jury could conclude that. the

“Less Lethal Munitions” training constitutes the City’s

policy or custom regarding use of the beanbag

munition, the Court next considers whether the

training amounts to deliberate indifference to the

rights of persons with whom the officers using the

beanbag munition come into contact. To establish

deliberate indifference, Plaintiffs must show that

Columbus had subjective knowledge ofa risk of serious

harm but disregarded that risk by conduct that is more

than mere negligence. Cook, 402 F.3d at 1115. Here,

Columbus knew—because the person Columbus

delegated to develop the “Less Lethal Munitions”

training knew, based on the Armor training Bolen

received—-tthat death was a serious risk of shooting a

suspect in the spleen or center mass, even from

distances greater than twenty feet. (See 2000 Armor

Manual 16 (noting that impact to life supporting

organs “should be AVOIDED unless it is the intent to

deliver deadly force” and that shots to the center mass

“have the highest potential to cause serious injury or

death”); see also 2003 Armor Manual 6 (recommending

that at distances of ten to thirty feet officers should

5la

target “lower extremities unless deadly force is

warranted”).”’) Therefore, Columbus knew that officers

should not deploy a beanbag munition toward a

suspect’s spleen or center mass from a distance less

than thirty feet unless deadly force was authorized.

Accordingly, Columbus had an obligation to reasonably

assure that its police officers did not shoot someone in

the spleen or center mass if deadly force was not

authorized.

Nonetheless, when Bolen created CPD’s “Less

Lethal Munitions” training, he instructed officers that

at. distances of twenty to forty feet—the range at issue

in this action—“the target area should be the center

mass.””' (CPD LLM Order 3.) The CPD training does

not, however, explain that the center mass should only

be targeted if deadly force is authorized. This

instruction is the opposite of Armor’s guidelines and

recommendations concerning the distance and

” It is undisputed that Bolen did not have the 2003 Specification

Manual when he created the CPD “Less Lethal Munitions”

training. It is also undisputed that Bolen did not attend any

re-certification training or update the CPD “Less Lethal

Munitions” training between the time his Armor training

certification expired and 2002 and when he renewed it in May of

2005. Even ignoring the 2003 manual’s admonition to target lower

extremities unless deadly force is warranted, the 2000 manual

clearly informed Bolen of the substantial risk of death if officers

were to target a life supporting organ or the center mass with a

beanbag munition.

*" Bolen also instructed officers that at distances of ten to twenty

feet, officers should “avoid the head, neck, spleen, liver, and

kidney areas,” but Bolen did not explain where the liver, spleen

and kidneys are located so that officers knew which areas to avoid

(CPD LLM Order 3.)

52a

targeting of the beanbag munition, which are based

upon Armor’s research. According to Armor, the

primary target areas should be the buttocks and thigh;

the secondary target areas should be muscle areas

such as the shoulder, biceps, triceps and forearm; and

the center mass is a “last resort” terget area and

should be used “to meet a level of threat escalating to

deadly force justification.” (2000 Armor Manual 15.)

Again, the Armor training warned that shots to the

center mass “have the highest poter.tial to cause

serious injury or death” and that impact to life

supporting organs “should be AVOIDED unless it is

the intent to deliver deadly force.” Ud. at 16.) Bolen

argues that any discrepancies between his training

and the Armor recommendations are inadvertent, but

the fact that Bolen’s training recommiends targeting

the center mass in spite of Armor’s specific admonition

to avoid the center mass unless deadly force is

authorized gives rise to a jury question on the question

whether Bolen, and therefore Columbus, disregarded

a risk of serious harm by conduct that is more than

mere negligence. For these reasons, the Court denies

the City’s motion for summary judgment as _ to

Plaintiffs’ Fourth Amendment excessive force claims.

3. Bolen Individual Liability

For the same reasons that a jury could conclude

that Columbus was aware of the risk of a serious harm

associated with deployment of the beanbag munition

toward the center mass or spleen but disregarded that

risk by conduct that is more than mere negligence, a

jury could conclude that Bolen, in creating CPD’s “Less

Lethal Munitions” training, was_ deliberately

indifferent to the rights of persons with whom the

officers using the beanbag munition come into contact.

53a

The Court further finds that a jury could find a causal

connection between Bolen’s training and Zachary’s

injury because there is a fact question as to whether

Coats targeted the spleen or center mass even though

deadly force was not warranted. As discussed above, at

the time of the shooting (and the creation of the

training) it was clearly established that deadly force is

not permitted unless the officers have probable cause

to use deadly force. See Garner, 471 U.S. at 11-12. For

all of these reasons, at this time, qualified immunity is

not appropriate as to Plaintiffs’ claims against Bolen

because a jury could conclude that he trained officers

to aim the beanbag munition at the center mass even

when deadly force was not warranted because he told

them to target the center mass at distances of twenty

to forty feet but did not adequately warn them of the

consequences of targeting the center mass from that

distance. The Court therefore denies Bolen’s motion for

summary judgment as to the excessive force claim

against him in his individual capacity.

4. Boren Individual Liability

Plaintiffs also seek to hold Chief Boren individually

liable for excessive force against Zachary. It is

undisputed that Boren did not participate in the

beanbag shooting or in training the officers on the

beanbag munition. Plaintiffs have not pointed to a

“history of widespread abuse” that put Boren on notice

of the need to correct CPD’s “Less Lethal Munitions”

policy. Cottone, 326 F.3d at 1460. Plaintiffs have also

not pointed to any evidence that Boren instructed his

subordinates to act unlawfully or knew that they

would act unlawfully and failed to stop them from

doing so. Accordingly, the Court concludes that

Plaintiffs have not pointed to sufficient evidence of a

54a

causal connection between fBoren’s actions and

Zachary’s shooting. Therefore, Boren is entitled to

qualified immunity as to Plaintiffs’ excessive force

claims against him in his individual capacity.

II. § 1983 Substantive Due Process Claim

Plaintiffs’ substantive due process claim is based

upon the same facts underlying their unreasonable

seizure and excessive force claims. Accordingly, that

claim must be analyzed under the Fourth

Amendment’s objective reasonableness’ standard,

discussed above, rather than a_ Fourteenth

Amendment substantive due process approach.

Therefore, Defendants are entitled to summary

judgment on the substantive due process claim. See,

e.g., Reese v. Herbert, 527 F.3d 1253, 1261 n.11 (11th

Cir. 2008).

iil. First Amendment Claim

In addition to their Fourth Amendment claims,

Plaintiffs contend that the officers arrested Zachary in

retahation for Zachary’s exercise of free speech, thus

violating the First Amendment.” To state a retaliation

claim, Plaintiffs must show (1) that Zachary’s speech

was constitutionally protected, (2) that the officers’

retaliatory conduct adversely affected the protected

* In their brief, Plaintiffs did not respond to Defendants’

arguments in support of summary judgment on the First

Amendment Ciaim. At the motion hearing, Plaintiffs’ counsel

represented that Plaintiffs had not abandoned their First

Amendment claim and that the same arguments Plaintiffs made

with regard tothe Fourth Amendment unreasonable seizure claim

applied te Plaintiffs’ First Amendment claim.

55a

speech, and (3) there is a causal connection between

the constitutionally protected speech and the

retaliatory actions. Bennett v. Hendrix, 423 F.3d 1247,

1250 (11th Cir. 2005).

The First Amendment “ordinarily denies a State

‘the power to prohibit dissemination of social, economic

and political doctrine which a vast majority of its

citizens believes to be false and fraught with evil

consequence.” Virginia v. Black, 538 U.S. 343, 358

(2003) (quoting WaAitney v. California, 274 U.S. 357,

374 (1927) (Brandeis, J., concurring)). However, the

Kirst Amendment’s protections are not absolute, and

“the government may regulate certain categories of

expression consistent with the Constitution.” Jd.

Therefore, consistent with the Constitution, the

government may regulate speech that constitutes a

“true threat.” Jd. at 359.

A “true threat” is a statement “where the speaker

means to communicate a serious expression of an

intent to commit an act of unlawful violence to a

particular individual or group of individuals.” /d. “The

speaker need not actually intend to carry out the

threat. Rather, a prohibition on true threats ‘protect|s]

individuals from the fear of violence’ and ‘from the

disruption that fear engenders,’ in addition to

protecting people ‘from the possibility that the

threatened violence will occur.” [d. at 359-60 (quoting

R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)).

“Intimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker

directs a threat to a person or group of persons with

the intent of placing, the victim in fear of bodily harm

or death.” Jd. at 360. “A communication is a threat

when in its context [it] would have a reasonable

56a

tendency to create apprehension that its originator will

act according to its tenor.” United States v. Alaboud,

347 F.3d 1293, 1296 (11th Cir. 2003) (alteration in

original and internal quotation marks omitted)

(explaining what constitutes a “communication”

containing a “threat” under 18 U.S.C. § 875(c)). Thus,

the government may regulate speech if the speaker

intentionally makes the statement and a reasonable

person would construe the statement as a serious

expression of an intent to inflict bodily harm or death.

Here, the Court cannot find that Zachary’s

statement to the 911 dispatcher was protected speech

When the 911 dispatcher called Zachary, Zachary said,

‘Look here, ma’am. You tell these guys in front my

door, ’m ... Pm going to start shooting. T’ll start

shooting ... get these yuys out from my door, man.”

(911 Tr. at 7.) As discussed above, it was reasonable

for McDaniel and the officers to construe Zachary’s

statements as a threat. to inflict harm upon the

responders standing outside of Zachary’s house if those

responders did not leave. ‘Vherefore, Zachary’s speech

was not protected, so Plaintiffs’ First Amendment

retaliation claim fails, and Defendants are entitled to

summary judgment on this claim.

IV. Equal Protection and Civil Conspiracy

Claims

Plaintiffs argue that Defendants violated Zachary’s

Fourteenth Amendment right to equal protection

based on his race. 'l’o state an equal protection claim,

a plaintiff must show that “through state action,

similarly situated persons have been treated

disparately” and that the Defendants’ actions were

motivated by race. Draper v. Reynolds, 369 F.3d 1270,

de P

ofa

1278 n.14 (11th Cir. 2004) Gnternal citation and

quotation marks omitted). Plaintiffs have pointed the

Court to no evidence of any sumntilarly situated persons

who have been treated differently than Zachary

Plaintiffs point the Court to instances in which white

suspects were subdued with some type of force other

thana beanbag munition, but there is no evidence that

any of these white | uSspects Was | imilarly situated to

Zachary in terms of his alleged misconduct, the setting

of his arrest or the events leading up to his arrest

Plaintiffs also argue that Defendants’ actions were

motivated by diseriminutory animus, contending that

Coats had previously used deadly force ayainst a black

suspect but never used deadly force avainst a white

person. This evidence is not sufficient to show that

Defendants’ actions apyainst Zachary were motivated

by race. Accordingly, Defendants are entitled to

summary judgment on Plaintiffs’ equal protection

claim

Likewise, Defendants are entitled to summary

judgment on Plaintiffs civil conspiracy claim under 42

U.S.C. § 19%503), which provides a cause of action for

u conspiracy lo deprive “any person or class of persons

of the equal protection of the Jaws.” The elements of a

cause of action under & 19853) are

(1) a conspiracy; (2) for the purpose of depriving,

cither directly or indireetly, any person or cla

of persons of the equal protection of the laws, o1

of equal privileges and immunities under the

laws; and (3) an act jin furtherance of the

conspiracy, (4) whereby a person is) eithes

Injured in his person or property or deprived of

any might or privilege of a citizen of the United

state

58a

Denney v. City of Albany, 247 ¥.3d 1172, 1190 (11th

Cir. 2001). Plaintiffs contend that Defendants

conspired to injure Zachary on account of his race in

violation of § 1985(3). However, as discussed above,

Plaintiffs have not pointed to sufficient evidence from

which a jury could conclude that Defendants’ actions

against Zachary were motivated by race. Accordingly,

the Court grants Defendants’ summary judgment

motion as to Plaintiffs’ civil conspiracy claim.

V. State Law Claims

A. City Liability

To the extent that Plaintiffs assert state law claims

against Columbus, the Court finds that Columbus is

entitled to summary judgment as to all of Plaintiffs’

state law claims because Columbus is entitled to

sovereign immunity. The doctrine of sovereign

immunity protects governments, including counties,”

from suit unless they have waived their immunity.

Williams v. Whitfield County, 289 Ga. App. 301,

302-03, 656 S.E.2d 584, 586 (2008). A county’s

sovereign immunity “may only be waived by a

legislative act which specifically provides’ that

sovereign immunity is waived and the extent of such

waiver.” Id. at 302, 656 S.E.2d at 586 (internal

quotation marks omitted). Here, Plaintiffs have not

established any waiver of immunity by Columbus, and

* The City is a consolidated city-county government, and the

Court views the City as a county for purposes of the sovereign

immunity inquiry. See Bowen v. Columbus, 256 Ga. 462, 462-63,

349 S.F.2d 740, 741-42 (1986).

59a

Columbus is therefore entitled to summary judgment

on Plaintiffs state law claims.

B. Individual Liability

As to Plaintiffs’ state law claims against the

individual Defendants, Defendants contend that they

are entitled to official immunity. A suit against a

governmental employee sued in his individual capacity

“is barred by official immunity where the public official

has engaged in discretionary acts that are within the

scope of his or her authority, and the official has not

acted in a wilful or wanton manner; with actual

malice; or with the actual intent to cause injury.”

Brown v. Penland Const. Co., 281 Ga. 625, 625-26, 641

S.f.2d 522, 523 (2007). Plaintiffs do not dispute that

the individual Defendants were engaging in

discretionary acts during the events giving rise to this

case.

The next question 1s whether Defendants acted in

a wilful or wanton manner, with actual malice, or

actual intent to cause injury. “Actuai malice” means “a

deliberate intention to do wrong, and does not include

‘implied malice,’ i.¢c., the reckless disregard for the

rights or safety of others.” Murphy v. Bajjant, 282 Ga.

197, 203, 647 S.E.2d 54, 60 (2007) (internal quotation

marks omitted). A “deliberate intention to do wrong” is

“the intent to cause the harm suffered by the

plaintiffs.” Jd. Similarly, “actual intent to cause injury”

means “an actual intent to cause harm to the plaintiff,

not merely an imtent to do the act purportedly

resulting in the claimed injury.” Kidd v. Coates, 271

Ga. 33, 33, 518 S.E.2d 124, 125 (1999) (internal

quotation marks omitted). The Court examines each of

Plaintiffs’ state law claims in turn below.

60a

1. “Intentional Tort” and “Malictous

Negligence” Claim

In support of their “intentional tort” and “malicious

neghgence” claim, Plaintiffs contend that Defendants

breached their duty as police officers not to use

excessive force against Zachary. (See Compl. 9 102.)

Plaintiffs do not cite, and the Court cannot find, any

basis in Georgia law for this claim, which is, in any

event, duplicative of their Fourth Amendment and

battery claims. Defendants are therefore entitled to

summary judgment on this claim.

2. False Arrest Claim

To prevail on their claim for false arrest under

Georgia law, Plaintiffs must show that Coats, Hudson

and Touchberry acted without probable cause and with

malice. O.C.G.A. § 51-7-1; Anderson v. Cobb, 258 Ga.

App. 159, 160, 573 S.E.2d 417, 419 (2002). As

discussed above, these Defendants had arguable

probable cause to arrest Zachary for violating

Georgia’s terroristic threats law. Therefore, these

Defendants did not act with malice or intent to cause

injury when they arrested Zachary, and these

Defendants are entitled to official immunity. Thus,

Plaintiffs’ false arrest claim fails.

3. False Imprisonment Claim

“False imprisonment is the unlawful detention of

the person of another, for any length of time, whereby

such person is deprived of his personal liberty.”

O.C.G.A. § 51-7-20. Plaintiffs contend that Defendants

falsely imprisoned Zachary by arresting him without

probable cause and placing him under police

bla

supervision at the hospital.** “[T]he defense of a

warrantless arrest in a false imprisonment case must

show that the arrest was made on probable cause and

pursuant to the appropriate exigent circumstances.”

Arbee v. Collins, 219 Ga. App. 63, 66, 463 S.KF.2d 922,

926 (1995) (citing O.C.G.A. § 17-4-20(a)). “Appropriate

exigent circumstances” include (1) offense committed

in an officer’s presence or within his immediate

knowledge, (2) suspect trying to escape, (3) probable

cause to believe that an act of family violence has been

committed, and (4) “other cause if there is likely to be

failure of justice for want of a judicial officer to issue a

warrant.” O.C.G.A. § 17-4-20(a). As discussed above,

Defendants had arguable probable cause to arrest

Zachary for violating Georgia’s terroristic threats

statute. Furthermore, the officers reasonably

suspected that Zachary might harm either the officers

or someone inside the house if they did not arrest

Zachary. Therefore, the Court cannot conclude that

there is a genuine issue of material fact that

Defendants acted with malice or intent to cause injury

when they arrested Zachary and took him into custody,

so Defendants are entitled to summary judgment

based on official immunity as to Plaintiffs’ false

imprisonment claims.

4. Assault and Battery

To state a claim for assault, Plaintiffs must show

that the conduct of Coats, Hudson and Touchberry was

not justified and that their conduct placed Zachary “in

“4 Plaintiffs point to no evidence that either Boren, Hudson,

Touchberry, or Coats was involved in the decision to place Zachary

under police supervision in the hospital.

62a

fear of an illegal, unauthorized physical contact.”

Gardner v. Rogers, 224 Ga. App. 165, 169, 480 S.E.2d

217, 221 (1996). To state a claim for battery, Plaintiffs

must show that Coats, Hudson and Touchberry

“carried out the illegal contact.” Jd. As discussed

above, a jury could conclude that Coats, in accordance

with the instructions of Hudson and Touchberry,

placed Zachary in fear of unauthorized physical

contact and then carried out the contact when he

intentionally used deadly force against Zachary even

though deadly force was not. warranted under the

circumstances.” ‘Therefore, Coats, Hudson and

Touchberry are not entitled to state official immunity

as a matter of law as to Plaintiffs’ assault and battery

claims because a jury could conclude that their actions

were intentional and carried out with wilfulness or

malice, in violation of a known right. See id. ‘heir

motion for summary judgment on Plaintiffs’ assault

and battery claims is therefore denied.

5. Intentional Infliction of Emotional Distress

“A claim for intentional infliction of emotional

distress has four elements: (1) intentional or reckless

conduct (2) which is extreme and outrageous and

(3) caused the emotional distress (4) which is severe.”

Lewts v. Northside Hosp., Inc., 267 Ga. App. 288, 292,

599 S.1.2d 267, 270 (2004) (internal quotation marks

omitted). As discussed above, a jury could conclude

that Coats, Ifudson and Touchberry engayed in

intentional (or reckless) conduct—shooting or causing

Zachary in the spleen, he did hit Zachary in the spleen, creating

a jury question as to whether he intended to do so.

Zachary to be shot in the spleen or center mass with

the beanbag munition. Such a_ shooting, without

justification for the deadly force, is sufficiently extreme

and outrageous. A jury could conclude that Zachary

suffered severe emotional distress; he was in the

hospital, conscious and awake for at least part of the

two days between the shooting and his death, aware

that he had been shot and was severely injured. A jury

could also conclude that Coats, Hudson and

Touchberry intended to cause Zachary severe

emotional distress by shooting him (or directing him to

be shot with) the beanbag munition, which was

capable of causing severe physical injury or death.

Therefore, Coats, Hudson and ‘Touchberry are not

entitled to official immunity as a matter of law on

Plaintiffs’ intentional infliction of emotional distress

claim, and their motion for summary judgment on this

oe 26

claim is therefore denied.”

CONCLUSION

For the reasons discussed above, the Court grants

Defendants’ motion for summary judgment as to the

following claims:

lL. Fourth Amendment unreasonable seizure claim.

2. Kourth Amendment excessive force claim

against Chief Boren in his individual capacity.

°° To the extent Plaintiffs seek to assert intentional infliction of

emotional distress claims against any other individual

Defendants, the Court concludes that Plaintiffs have not. pointed

to enough evidence to overcome official immunity.

64a

3. Substantive due process claim.

4. First Amendment claim.

5. Equal protection claim.

6. Civil conspiracy claim.

7. “Intentional tort” and “malicious negligence”

claim.

8. False arrest claim.

9. False imprisonment claim.

The Court denies summary judgment as to the

following claims:

1. Plaintiffs’ § 1983 claims against Columbus for

excessive force.

2. Plaintiffs’ § 1983 individual capacity claims

against Bolen, Coats, Hudson and Touchberry

for excessive force.

3. Plaintiffs’ assault and battery claims against

Coats, Hudson and Touchberry.

4. Plaintiffs’ intentional infliction of emotional

distress claims against Coats, Hudson and

Touchberry.

CERTIFICATE OF IMMEDIATE APPEAL

In the Court’s view, this Order, including the denial

of summary judgment as to the officers in their

65a

individual capacities, is not directly appealable

because genuine issues of material fact must be

resolved by a jury before the Court can decide whether

the officers are entitled to qualified immunity. See

Breeden, 280 F.3d at 1317 (“[Jf the evidence at the

summary judgment stage, viewed in the light most

favorable to the plaintiff, shows there are facts that

are inconsistent with qualified immunity being

granted, the case and the qualified immunity issue

along with it will proceed to trial.”). However,

pursuant to 28 U.S.C. § 1292(b), the Court finds that

Defendants sued in their individual capacities should

be permitted to take an immediate appeal on the issue

of qualified immunity. The Court is of the opinion that

its rulings as to the qualified immunity issues in this

case involve “a controlling question of law as to which

there is substantial ground for difference of opinion

and that an immediate appeal from the order” on the

qualified immunity question “may materially advance

the ultimate termination of the litigation.” 28 U.S.C.

§ 1292(b). The Court further finds that if the Court of

Appeals determines that an appeal of the Court’s

rulings denying qualified immunity to the individual

Defendants should be permitted, then judicial economy

would be served by also reviewing the Court’s ruling

denying the City’s motion for summary judgment on

Plaintiffs’ § 1983 excessive force claim.

IT IS SO ORDERED, this 2nd day of December,

2008.

S/Clay D. Land

CLAY D. LAND |

UNITED STATES DISTRICT JUDGE

66a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

CASE NO. 4:07-CV-52 (CDL)

[Filed June 23, 2010]

WILLIE L. GLENN (as Personal

Representative of the Estate of

Lester Zachary), and KAREN

ZACHARY (individually, and As

Next Friend of Lester Zachary),

Plaintiffs,

VS.

CITY OF COLUMBUS, GEORGIA/

CONSOLIDATED GOVERNMENT OF

COLUMBUS, GEORGIA, et al.,

Defendants.

ORDER

The Court previously denied summary judgment as

to the following claims:

67a

1. Plaintiffs’ § 1983 claims against Columbus for

excessive force.

2. Plaintiffs’ § 1983 individual capacity claims

against Bolen, Coats, Hudson and Touchberry

for excessive force.

3. Plaintiffs’ assault and battery claims against

Coats, Hudson and Touchberry.

4. Plaintiffs’ intentional infliction of emotional

distress claims against Coats, Hudson and

Touchberry.

The Eleventh Circuit Court of Appeals reversed the

Court’s denial of qualified immunity to Defendants

Bolen, Coats, Hudson and Touchberry on Plaintiffs’

§ 1983 excessive force claims. The Court of Appeals did

not expressly decide whether the remaining claims

should proceed to trial, but Defendants contend that

they are entitled to judgment as a matter of law on the

remaining claims in light of the Eleventh Circuit’s

qualified immunity opinion. For the reasons set forth

below, the Court agrees.

DISCUSSION

The Court previously found genuine issues of

material fact on Plaintiffs’ § 1983 excessive force claim

against Columbus because the Court concluded that

jury questions existed on (1) whether the officers used

deadly force when they deployed a beanbag munition

against Lester Zachary and (2) whether the officers

had probable cause to use deadly force. Glenn v. Cily

of Columbus, Ga., No. 4:07-CV-52 (CDL), 2008 WL

51150382, at *12-*13 (M.D. Ga. Dec. 2, 2008)

68a

(lhereinafter District Ct. Order]. The Court further

concluded that Columbus could be held liable for the

officers’ acts because the Court found that a jury could

conclude that Columbus’s “Less Lethal Munitions”

training disregarded a risk of serious harm. /d. at *14

In its qualified immunity decision, the Kleventh

Circuit concluded that, in this case, the beanbag

munition was not deadly force; instead, it “lies in the

unwashed middle somewhere between deadly force

and the use of a Taser gun.” Glenn v. City of

Columbus, Ga., No. 09-11078, 2010 WL 1558721, at *5

(Apr. 20, 2010) (per curtam) [hereinafter 11th Cir.

Op.|. The Eleventh Circuit further concluded that the

use of force was reasonable under the circumstances

because the officers “used force to prevent threatened

harm to a child,” against Mr. Zachary himself, or

against Mr. Zachary’s companion, noting that “the

officers reasonably believed on the basis of the |Mr.

Zachary’s| threats that he was equipped to commit and

had contemplated homicide as well as suicide.” Jd. The

Eleventh Circuit also noted that although “the officers

received some information that may have mitigated

Zachary’s threats to shoot himself or the police, the

officers also received substantial corroboration that the

situation was fraught with grave danger that Zachary

would use deadly force.” /d. at 6. Finally, the Eleventh

Circuit found that Defendant Bolen, who created the

Columbus policy on using the beanbag munition, was

entitled to qualified immunity on Plaintiffs’ excessive

force claims based on creation of that policy. Jd. at 7.

Although this Court finds the holding and rationale

of the Court of Appeals to be remarkably charitable to

law enforcement officers who used deadly force against

an unarmed man under dubious circumstances, the

69a

Court of Appeals’s holding and rationale lead to the

inescapable, albeit perhaps puzzling, result that if the

Court of Appeals had to decide the remaining claims in

this case, it would find that they fail as a matter of

law. Duty bound to follow the dictates of the Court of

Appeals, the Court therefore finds in favor of

Defendants on the remaining claims for the following

reasons. First, regarding the federal law claims

against the City of Columbus, although the holding of

the Eleventh Circuit’s opinion focused upon the

qualified immunity issue, the opinion suggests in

much brozder terms that the Eleventh Circuit found

the use of force was reasonable under’ the

circumstances and, therefore, no constitutional

violation occurred. Second, the Eleventh Circuit’s

opinion contemplates that, even if a constitutional

violation occurred, the beanbag munition policy cannot

be a basis for municipal liability because the Eleventh

Circuit concluded that the policymaker was entitled to

qualified immunity on Plaintiffs’ claims against him,

suggesting that the training could not amount to a

deliberate indifference to the rights of persons with

whom the officers using the beanbag munition come

into contact

As to Plaintiffs’ state law claims, this Court

concluded that a jury could conclude that the

individual Defendants “acted in a wilful or wanton

manner, with actual malice; or with the actual intent

to cause injury.” District Ct. Order, 2008 WI, 5115082,

at *19. This conclusion was based on the Court’s

determination that a jury could find that the officers

used deadly force even though deadly force was not

authorized under the circumstances. However, as

discussed above, the Eleventh Circuit concluded that

the force used was” reusonable under § the

(Oa

circumstance Oo this Court must now tind that

Plaintiffs cannot establish thei tate law claim

because Defendants are entitled to offiaal immunity

Thus, Plaintiffs’ state law claims fail

ror the reason et forth above, the Court

concludes that, in tight of the Kleventh Cireurt

qualified immunity decision, Defendants are entitled

to summary judgment as to all of Plaintiffs remaining

claims. Accordingly, Summary judgment is hereby

entered in favor of Defendant

ITIS SO ORDERED, this Z3rd day of June, 2010

‘S/( lay 1). Land

CLAY D. LAND

UNTER DSTATES DISTRICT JUDGE

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.