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GENEVIEVE FERNANDEZ, as Personal Representative of the Estate of Fidel
Fernandez, for the benefit of the Estate, and GENEVIEVE FERNANDEZ, individually
as surviving mother, Plaintiff, v. CITY OF COOPER CITY, a municipal
corporation, and OFFICER CHRISTOPHER BUSHING, individually, OFFICER MICHAEL
DODDO, individually, and OFFICER ROBERT POLINK, individually, Defendants.
Case No.: 01-7059-CIV-MIDDLEBROOKS
207 F. Supp. 2d 1371
May 10, 2002, Decided
THIS CAUSE comes before the Court upon two motions for summary judgment,
one filed by the municipal defendant, City of Cooper City (DE # 42), and one
filed by the three individual police officers named as defendants in the Third
Amended Complaint (DE # 44). Both motions were filed on February 28, 2002. On
April 3, 2002, the plaintiff submitted her response to these motions, with the
defendants submitting their respective replies on April 10, 2002. Accordingly,
the issue has been fully briefed and is ripe for disposition. The Court has
reviewed the record, the submissions of counsel, the relevant caselaw, and is
otherwise fully advised in the premises. Further, the Court took oral argument
on these motions in West Palm Beach, Florida, on May 10, 2002. Based on the
following discussion, the Court finds
that all defendants are entitled to summary judgment in their favor.
I. Legal Standard
Summary judgment is appropriate when there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed.
2d 265, 106 S. Ct. 2548 (1986). The moving party bears the burden of meeting
this rather rigorous standard. See
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90
S. Ct. 1598 (1970). In analyzing a motion for summary judgment, the evidence,
as well as all reasonable factual inferences drawn therefrom, must be viewed in
the light most favorable to the nonmoving party-- here, the plaintiff. See Arrington v. Cobb County, 139 F.3d 865,
871 (11th Cir. 1998); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
Equally apparent, however, is the principle that the nonmoving party
bears the burden of coming forward with evidence of each essential element of
the relevant claims, such that a reasonable jury could find in his or her
favor. See Earley v. Champion Int'l
Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). The nonmoving party "may not
rest upon the mere allegations and denials of [its] pleadings, but [its]
response . . . must set forth specific facts showing that there is a genuine
issue for trial." Fed. R. Civ. P. 56(e). "The mere existence of a
scintilla of evidence in support of the [nonmovant's] position will be
insufficient; there must be evidence on which the jury could reasonably find for
the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91
L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th
Cir. 1998) ("Summary judgment may be granted if the evidence is 'merely
colorable.' ") (quoting Anderson, 477 U.S. at 248). It is from this point
that the Court begins its analysis.
II. Facts
Viewing the evidence in the light most favorable to the plaintiff, the
Court recites the following version of the events at issue. The plaintiff
relies primarily on the deposition testimony of Carlos "Jose" Perez
in describing what occurred, and given the summary judgment standard, the Court
will as well, filling in the gaps with other undisputed evidence where necessary.
Fidel Fernandez
("Fidel"), a 48-year-old Hispanic male, was approximately 6' 4"
tall, and weighed around 225 pounds. He was a Vietnam veteran and suffered from
chronic paranoid schizophrenia. Although [*1374] there is much testimony concerning
Fidel's mental condition and the Winn Dixie employees' (and other employees in
the same shopping center) knowledge of this, there is no evidence that any of
the police officers who were involved in this situation had any similar
knowledge about Fidel.
Fidel often accompanied his
mother (now deceased) to the Winn Dixie supermarket in question, located in the
City of Cooper City. Fidel was a heavy smoker, and was often seen smoking
cigarettes in the parking lot in front of the Winn Dixie. On the morning of
June 26, 2000, a Cooper City 911 emergency dispatcher received a call
concerning a "man in the parking lot just loitering [in the Winn Dixie
parking lot], smoking cigarettes, talking to himself, sitting in the middle of
the road." The caller described the man as "wearing green shorts and a green shirt," and
stated that the man "looks like he's been drinking for a while or he's
just normally that way ...." At approximately 8:45 a.m., the dispatcher
relayed this information to Officer Michael Doddo, one of the individual
defendants here, who proceeded to the Winn Dixie. Officer Chris Bushing,
another of the individual defendants, also advised that he would report to the
scene. Officer Bushing arrived first. Upon arrival, Officer Doddo positioned
his police vehicle so that his in-car video camera could capture the events.
Both parties have submitted this videotape in connection with the instant
motion.
Several witnesses testified that
when Officer Bushing first arrived on the scene, Fidel was sitting in the
driver's seat of his mother's automobile, smoking a cigarette, with the window
rolled down. Many of these witnesses also stated that as Officer Bushing
approached the car in which Fidel was sitting, Fidel flicked a burning
cigarette at Officer Bushing, hitting him in the chest area. However, viewing
the evidence in the light most favorable to the plaintiff, the Court shall
relay and credit the description of the events as told by Carlos
"Jose" Perez, a then-77-year-old Winn Dixie employee. According to Mr.
Perez, when Officer Bushing arrived, dressed in full uniform, Fidel was sitting
on the ground on an island in the parking lot, smoking a cigarette. Officer
Bushing walked--at a normal pace and with his arms to his side-- toward Fidel,
approaching him from the back, and asked Fidel to stand up. At this time,
Officer Bushing had not touched Fidel. Officer Bushing then grabbed Fidel by
the arm, and Fidel stood up. Officer Bushing has been described as being slight
of build, tall and strong, but several inches shorter and many pounds lighter
than Fidel. n1 Mr. Perez testified that he was too far away to hear what was
then being said, but stated that Officer Bushing then attempted to place
handcuffs on Fidel. At this point, by all accounts, Fidel began physically
resisting the officers. n2
Fidel was flailing his [*1375] arms about with closed fists. At some point,
Officers Doddo and Robert Polink also arrived on the scene.
The videotape introduced by both
sides shows the view of the scene from Officer Doddo's police cruiser. It is
unclear at what point in the narrative the videotape picks up. However, what
the video does show is Fidel swinging his arms in large circular motions,
striking one of the officers and knocking the officer's sunglasses off of his
head. Fidel also strenuously resists the officers' attempts to subdue him by
pushing at least one officer away with his arms and taking off across the
parking lot in a headlong run. From this point, the video camera's vantage
point was not able to record the remainder of what transpired.
However, the testimony of the
other witnesses to the event establishes that the three officers immediately
gave chase, catching up with Fidel within several yards of where the encounter
began. "When [the officers] surrounded [Fidel], he continued to try and
lash out and hit at the different cops that were over there." Burton depo.
at 19:23-25. The three officers managed to wrestle Fidel to the ground, where
Fidel continued to actively resist the attempts to restrain him. According to
Mariano Nodel, a Winn Dixie supervisor, Fidel was face-down on the ground,
"and [the officers] were trying to
keep him on the floor from moving, and ... he was struggling to get out,
starting to move up, starting to move up or whatever, and they were just trying
to hold him down." Nodel depo. at 12:03-07. Fidel was "moving like
his shoulder trying to-- you know, trying to get out." Id. at 13:12-13.
All of the witnesses testified that at no point did any of the officers punch,
kick, or hit Fidel with their hands, feet, or other objects, such as their
nightsticks, firearms, or flashlights. Likewise, no officer drew his weapon
during the occurrence.
The officers managed to place
two sets of handcuffs on Fidel's hands and plastic restrainer cuffs on his legs.
The cuffs were placed on Fidel's legs because he was kicking. The three
officers worked in concert to hold Fidel to the ground while the restraining
cuffs were placed on him. One of the officers had a knee pressed against
Fidel's back. Although no witness testified to seeing this, according to the
police reports, Officer Doddo at one point sprayed Fidel's face and upper body
with one stream of Freeze +P Pepper Spray. Shortly after the officers had
managed to place the cuffs on Fidel's hands and legs, Fidel stopped moving. The
officers checked for a pulse and, able to find none, called for the paramedics.
The officers removed the restraints from Fidel's hands and legs and began CPR.
However, they were unable to revive Fidel, who died at approximately 9:30 a.m.
III. Discussion
A.
The Individual Officers
On
June 22, 2001, Fidel's mother, Genevieve Fernandez, filed the instant suit as personal representative
of Fidel's estate as well as on her own behalf. After going through various
amendments, the Third Amended Complaint, the current operative complaint,
alleges the use excessive force against the individual defendants and
inadequate training against the municipal defendant, both claims brought under
42 U.S.C. § 1983, and wrongful death under Florida state law. Discovery
has now closed in the case, and the defendants have moved for summary judgment
on all counts. The individual officers have asserted the defense of qualified
immunity.
The
doctrine of qualified immunity "protects government officials performing
discretionary functions from civil liability if their conduct violates no
'clearly established statutory or constitutional rights of [*1376] which a
reasonable person would have known.' " Post v. City of Fort Lauderdale , 7
F.3d 1552, 1556 (11th Cir. 1993) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). n3 "Qualified immunity is
a question of law for the courts, even when asserted on summary judgment."
7 F.3d at 1557. The first inquiry which a court must make is whether the
government official(s)-- here, the individual officers-- were performing
discretionary functions. See Courson
v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). Neither side addresses this
issue in any depth whatsoever, and the Court itself concludes that the officers
were inherently performing a discretionary function when they were called to
the Winn Dixie parking lot that morning. Cf. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) ("In
this case, there can be no doubt that [the officer] was acting in his
discretionary capacity when he arrested [the plaintiff].").
The
Court must next "determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all," Conn v. Gabbert,
526 U.S. 286, 290, 143 L. Ed. 2d 399, 119 S. Ct. 1292 (1999), and, if this
query is answered in the affirmative, only then "proceed to determine
whether that right was clearly established at the time of the alleged
violation." Id.
"In addressing an excessive force claim brought under § 1983,
analysis begins by identifying the specific constitutional right allegedly
infringed by the challenged application of force," because "§ 1983
'is not itself a source of substantive rights,' but merely provides 'a method for
vindicating federal rights elsewhere conferred.' " Graham v. Connor, 490
U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979)).
Here, the sole constitutional violation alleged against the individual officers
is that for the use of excessive force in violation of the Fourth Amendment.
Therefore, the Court must determine whether these defendants violated this
constitutional right and, if so, whether that right was clearly established as
of June 26, 2000.
The
Eleventh Circuit has very recently spoken on this issue. In Lee v. Ferraro, 284
F.3d 1188 (11th Cir. 2002), the appellate court set forth the following
framework this Court finds extremely useful in guiding the instant analysis:
...
In order to determine whether the amount of force used by a police officer was
proper, a court must ask "whether a reasonable officer would believe that
this level of force is necessary in the situation at hand." Willingham [v.
Loughnan] 261 F.3d [1178,] 1186 [(11th Cir. 2001)]. The Supreme Court has held
that "determining whether the force used to effect a particular seizure is
'reasonable' under the Fourth Amendment requires a careful balancing of 'the
nature and quality of the intrusion on the individual's Fourth Amendment
interests' against the countervailing governmental interests at stake."
Graham, 490 U.S. at 396 ... (quoting [*1377] Tennessee v. Garner, 471 U.S. 1,
8, 85 L. Ed. 2d 1, 105 S. Ct. 1694 ... (1985) (internal quotations omitted)).
...
The
Supreme Court has established that, in order to balance the necessity of using
some force attendant to an arrest against arrestee's constitutional rights, a
court must evaluate a number of factors, "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. ... Graham dictates unambiguously
that the force used by a police officer in carrying out an arrest must be
reasonably proportionate to the need for that force, which is measured by the
severity of the crime, the danger to the officer, and the risk of flight.
284 F.3d at 1197-98; see also Crosby v. Paulk, 187 F.3d 1339, 1351
(11th Cir. 1999) ("The proper standard for evaluating such a Fourth
Amendment, excessive force claim is whether, under the circumstances
confronting the officers and disregarding their intent or motivation, their
conduct was objectively reasonable."). It is of paramount importance that
a reviewing court judge consider the use of force "from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight," and refrain from slipping into the role of Monday-morning
quarterback, for "the calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second judgments--
in circumstances that are tense, uncertain, and rapidly evolving-- about the
amount of force that is necessary in a particular situation." Graham, 490
U.S. at 396-97. Finally, in light of the extremely fact-intensive nature of the
excessive-force inquiry, it has often been noted that "this standard
establishes no bright line." Post, 7 F.3d at 1559.
After reviewing the facts in the
light most favorable to the plaintiff, the Court finds that the officers did
not utilize unconstitutionally excessive force. The Court bases this decision
on an analysis of these facts as applied to the Graham factors of severity of
the crime, the threat to officers and others, and Fidel's headlong flight from
the officers. First, as to the severity of the crime, assuming that Fidel did
not flick a lit cigarette at Officer Bushing, which would be battery upon a law
enforcement officer, a third-degree felony in the State of Florida, see Fla.
Stat. §§ 784.07(2)(b), 843.01, there is still no right to resist as Fidel did.
Under Mr. Perez's version of the facts, Fidel was sitting on the ground of an
island in the parking lot when Officer Bushing approached him from the rear.
The Court must consider the facts from
the perspective of a reasonable officer in Officer Bushing's position; that is,
as an officer who had received a report from the 911 dispatcher concerning a
man sitting in the Winn Dixie parking lot, talking to himself, and appearing to
the caller either to have been drinking or to be mentally unstable. n4 Officer
Bushing asked Fidel to stand up and, when Fidel did not comply, Officer Bushing
grabbed Fidel by the arm. Officer Bushing attempted to cuff Fidel, and by the
accounts of every witness, Fidel then began physically to resist. Fidel was [*1378] several inches
and many pounds heavier than Officer Bushing.
A recent Florida decision has
reiterated the proposition that "the use of force in resisting an arrest
by a person reasonably known to be a law enforcement officer is unlawful
notwithstanding the technical illegality of the arrest." Tillman v.
State, 807 So.2d 106, 108-09 (Fla. 5th DCA 2002) (quoting State v. Barnard, 405
So.2d 210 (Fla. 5th DCA 1981)); see also
State v. Giddens, 633 So.2d 503, 503 (Fla. 5th DCA 1994). The Tillman
court predicated this conclusion on Fla. Stat. § 776.051(1), which makes clear
that "[a] person is not justified in the use of force to resist an arrest
by a law enforcement officer who is known, or reasonably appears, to be a law
enforcement officer." According to Mr. Perez, Officer Bushing arrived in
"a black car" and was "dressed in a uniform ... with black
sunglasses on ...." Perez depo. at 12:22-25. The videotape also shows all
officers as being dressed in full uniform. Accordingly, at the very least,
Officer Bushing "reasonably appeared to be a law enforcement
officer," Fla. Stat. § 776.051(1), and Fidel was not justified in
physically resisting as he did. Physically resisting a law enforcement officer
acting in his or her line of duty may be neither armed robbery nor jaywalking,
but the Court finds in these circumstances that it was closer to the former
than the latter. Therefore, the severity of the crime element of the Graham
inquiry highlights the non-excessive nature of the force the officers used in
restraining Fidel.
The
second Graham element is the perceived threat to the officers and to others.
There are many facts which could easily lead reasonable officers in the
position in which these defendants found themselves to conclude that Fidel
posed a threat to them, to others in the area, and perhaps to himself. First,
from what the officers knew, Fidel's mental condition was ambiguous at best--
the caller had reported Fidel as possibly under the influence of alcohol (which
could reasonably be considered to include other drugs), or mentally unstable.
Either scenario presents a heightened possibility of threat to the officers and
others. Second, Fidel did
in fact violently resist the officers. All witnesses testified to this, and the dashboard videotape shows Fidel
swinging his arms wildly and striking at least one officer. His struggles knocked
the sunglasses off of one officer. According to Mr. Perez, Officer Bushing did
not appear able to control the physically larger Fidel, and could not have done
so had the other officers not arrived on the scene. Additionally, Fidel
continued thrashing about once taken to the ground. He would not submit to the
officers' attempts at restraining him, and given his physical size, it took the
efforts of all three officers and a blast of pepper spray to ensure that Fidel
could not continue kicking, swinging his arms, and attempting to flee from the
authorities. Clearly, reasonable officers in this position could perceive Fidel
as a significant threat to themselves and to others.
The final Graham factor--
flight-- also supports the amount of force used in restraining Fidel.
Again, there is no factual dispute that after resisting Officer Bushing's
attempts to restrain him and flailing his arms about wildly, striking at least
one officer, Fidel took off in a headlong run across the parking lot. In
Goodman v. Town of Golden Beach, 988 F. Supp. 1450 (S.D. Fla. 1997), an
individual whom the police were attempting to question on one occasion ran from
the police onto his own property and on another occasion drove away from the
police when they tried to stop him for a traffic violation. See id. at 1453. Assessing this individual's
subsequent excessive force claim against the police officers, Judge Gold
concluded that [*1379] "the use of force during the attempted arrests ...
was not clearly unlawful ... [in part because] faced with a fleeing,
uncooperative suspect, these officers could reasonably have thought the use of
force was necessary." Id. at 1456-47. n5 Goodman's reasoning is
instructive, and the circumstances in the case at bar demonstrate an even greater
rationale than in that case as to why flight justified the use of force. Rather
than submit to the officers' questioning and attempts at restraining him, Fidel
resisted, struck the officers and took off running. This very scenario is what
the courts have in mind when assessing whether an officer's use of force was
objectively reasonable. One simply cannot strike an officer, take off running,
and not expect to be physically subdued by the police.
The plaintiff's primary argument
appears to be that the "positional asphyxiation" of Fidel evidences
the fact that the officers used unconstitutionally excessive force in
restraining Fidel. Plaintiff's medical expert described the factors
contributing to positional asphyxiation as prone restraint, pressure on the
upper torso, handcuffing, struggle, and obesity. In their answers to
plaintiff's interrogatories, the officers admit to being familiar with the term
"positional asphyxiation." However, it is unclear as to what
reasonable alternatives the officers had in dealing with Fidel. The prone
restraint, pressure on the upper torso (presumably from one of the officer's
knees being pressed to Fidel's back), handcuffing, and struggle were all the
result of Fidel's illegal, physical, and prolonged resistance. It was of course
an unfortunate occurrence, but sympathy for a plaintiff does not transform law
enforcement officials' objectively reasonable responses to a volatile situation
into a constitutional violation. n6
In
their moving papers and at oral argument, the defendants rely in large part on
Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996). This case does support the
defendants' arguments here. In Cottrell, two [*1380] police officers were
dispatched to a house in response to a 911 emergency call. Upon arrival, the
decedent's grandmother informed the officers that her grandson had a history of
psychological problems and that he had stopped taking his medication. See id. at 1488. After "an incident occurred
inside the residence," the two officers attempted to arrest the decedent.
Id. A physical struggle ensued, and two other officers were called for backup.
The four officers struggled with the decedent for a period of twenty minutes,
after which they were able to place handcuffs and leg restraints on the
decedent. See id. The officers placed the decedent in the backseat of one of
the cruisers, in a position in which the decedent was unable to inhale
sufficient oxygen. As a result, the decedent died of positional asphyxiation.
On these facts, the district court denied the officers' motion for summary
judgment based on qualified immunity, and the Eleventh Circuit tersely
reversed. The appellate court found that "the district court's detailed
factfindings concerning the events
surrounding the arrest and the force applied make it clear that there is no
genuine issue of material fact concerning excessive force in this case, and the
defendant officers are entitled to summary judgment as a matter of law."
Id. at 1492 (emphasis added). In the case at bar, three officers physically
struggled with Fidel, a noncooperative individual, for a period much shorter
than twenty minutes, managed to wrestle him to and keep him on the ground, and
placed handcuffs and leg restraints on him. If it was "clear" in
Cottrell that there was no unconstitutionally excessive force, a comparison and
contrast of the cases' respective facts leads to the conclusion that the same
result obtains here.
In conclusion, when considering
the evidence in the light most favorable to the plaintiff, as well as from the
perspective of a reasonable law enforcement officer faced with that situation,
the application all of the Graham factors demonstrate the objective
reasonableness of the officers' actions. n7 The officers never drew their
weapons, never punched or kicked Fidel, and never struck him with their
nightsticks or flashlights. They sprayed Fidel with one blast of pepper stray,
took him to the ground, one officer placed a knee to Fidel's back in order to
keep him from struggling free, and they placed cuffs on his hands and legs. The
sum total of these actions was an objectively reasonable response to the
situation with which these officers were confronted. Therefore, as a matter of
law, the plaintiff has failed to show a violation of a constitutional right,
and all the individual officers are protected by qualified immunity. The Court
shall accordingly grant their motion for summary judgment.
B.
The Municipal Defendant, City of Cooper City
The
Third Amended Complaint contains one count against the City of Cooper City (the
"City") for inadequate training, brought under 42 U.S.C. § 1983, and
one count for wrongful death under Fla. Stat. § 768.28. The City is entitled to
summary judgment on both counts.
In
City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197
(1989), the Supreme Court held that "while claims ... alleging that the
city's failure to provide training to municipal employees resulted in [a]
constitutional deprivation ... are cognizable under § 1983, they can [*1381]
only yield liability against a municipality where that city' failure to train
reflects deliberate indifference to the constitutional rights of its
inhabitants." Id. at 392. The Supreme Court assumed for purposes of that
decision that the individual's constitutional right had been violated. See id.
at 388 n.8. In the case at bar, however, based on the conclusion that the
individual officers committed no Fourth Amendment violation by utilizing excessive force in restraining Fidel, the
City of Cooper City cannot be held liable under the plaintiff's claims of
inadequate training. See City of Los
Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986)
(per curiam) (holding that the municipal defendants "were sued only
because they were thought legally responsible for [the individual officer's]
actions; if the latter inflicted no constitutional injury on respondent, it is
inconceivable that [the municipal defendants] could be liable to
respondent."); Wyke v. Polk County Sch. Bd., 129 F.3d 560, 569 (11th Cir.
1997) ("Before addressing whether the School Board can be held liable for
a failure to train its employees, we must first determine whether those
employees violated any of [plaintiff's] constitutional rights ....");
Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996) ("Since we have
determined that Deputy Watson's conduct did not cause the [plaintiffs] to
suffer a constitutional deprivation, we need not inquire into [the municipal
defendant's] policy and custom relating to patrol vehicle operation and
training."); see also Goodman,
988 F. Supp. at 1460 ("A claim of inadequate training and supervision
under section 1983 cannot be made out against a supervisory body without a finding
of constitutional violation by the persons supervised."). In short, here,
there has been no "constitutional deprivation" upon which the Supreme
Court's City of Canton decision was predicated. Therefore, there can be no
inadequate-training liability on the part of the City, and it is entitled to
summary judgment on that count.
The
complaint also charges the City with wrongful death, under Fla. Stat. § 768.28.
The City argues that this claim is defeated by application of Fla. Stat. §
776.085, which states:
(1) It shall be a defense to any action for
damages for ... wrongful death, ... that such action arose from injury
sustained by a participant during the commission of a forcible felony. The
defense authorized by this section shall be established ... by proof of the
commission of such crime or attempted crime by a preponderance of the evidence.
(2) For the purposes of this section, the
term "forcible felony" shall have the same meaning as in s. 776.08.
Id. The cross-referenced section, in turn, provides
that" 'forcible felony' means ... any ... felony which involves the use or
threat of physical force or violence against any individual." Id. §
776.08. Here, based on the undisputed evidence, and therefore inherently
established at least by a preponderance of the evidence, it is clear that at
some point after Officer Bushing attempted to restrain him, Fidel swung his
arms about and struck at least one of the uniformed officers. This was a
battery. See id. § 784.03. n8 Under Florida law, a battery committed against a
law enforcement officer in this manner is a third-degree felony, see id. §
784.07(2)(b), n9 [*1382] and in this case obviously involved "the use ...
of physical force or violence ...." Id. § 776.08. Resisting arrest with
violence is also a third-degree felony, see, e.g., Wardell v. State, 631 So.2d 1130, 1131 (Fla. 5th DCA 1994)
(per curiam), and it has been noted that "engaging in a scuffle with an
officer during an improper detention constitutes battery upon a law enforcement
officer and can itself give rise to a valid arrest and conviction for the
offense of resisting arrest with violence." Miller v. State, 636 So.2d
144, 151 (Fla. 1st DCA 1994) (per curiam) (citing Reed v. State, 606 So. 2d
1246 (Fla. 5th DCA 1992) and Savage v. State, 494 So.2d 274 (Fla. 2d DCA
1986)). The plaintiff's argument against this is that Fidel did not commit a
"forcible felony." The testimony of all witnesses-- including Mr.
Perez--indicates that Fidel did in fact
commit a forcible felony when he physically resisted the officers' attempts to
restrain him. The videotape evidence supports this conclusion even more fully.
Accordingly, the City may avail itself of the statutory defense to the damages
claim for wrongful death. Based on the undisputed evidence in this case, viewed
in the light most favorable to the plaintiff, the City is entitled to summary
judgment on the Florida wrongful death claim.
IV. Conclusion
Therefore, based upon the above discussion, the Court finds that all
defendants are entitled to summary judgment. Accordingly, it is hereby
ORDERED AND ADJUDGED that the City of Cooper City's Motion for Summary
Judgment (DE # 42) is GRANTED. Further, the three individual police officers'
Motion for Summary Judgment (DE # 44) is also GRANTED. Final Judgment shall be
entered separately.
DONE AND ORDERED in Chambers in West Palm Beach, Florida, this 10th day
of May 2002.
DONALD M. MIDDLEBROOKS
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 "He was shorter, a
lot lighter than [Fidel] Fernandez." Saez depo. at 19:19.
n2 Concerning this
resistance, the witness upon who the plaintiff principally replies, Mr. Perez,
testified as follows: "They wanted to put handcuffs on him but he didn't let
them, but between the three of them they forced him," Perez depo. at
15:04-05. When asked whether Fidel "tried to resist the police
officer," Mr. Perez answered, "Yes, of course," id. at 15:20-22,
and that "the boy was defending himself." Id. at 19:19. When asked if
Fidel was "swinging his arms," Mr. Perez stated, "Yes. The
policeman couldn't manage him," id. at 22:19-20, that the policeman
"couldn't control him," id. at 23:11, and that Officer Bushing
attempted to put handcuffs on Fidel-- "That's what he wanted to do, but he
couldn't." Id. at 23:17. Mr. Perez opined that "if the other two
police officers hadn't arrived, they wouldn't have been able to throw [Fidel]
to the ground," id. at 25:02-02, and that Fidel fought with Officer Bushing
for approximately ten minutes. See id. at 25:05-22.
n3 In Post, the Eleventh
Circuit described the policy rationale behind qualified immunity as follows:
Suits against government
officials for damages against them individually are costly not only for the
defendants, but for society as a whole. The social costs include "the
expenses of litigation, the diversion of official energy from pressing public
issues, and the deterrence of able citizens from acceptance of public
office." [Harlow, 457 U.S.] at 814 ... Qualified immunity recognizes that,
"where an official's duties legitimately require action in which clearly
established rights are not implicated, the public interest may be better served
by action taken 'with independence and without fear of consequences.' "
457 U.S. at 819 ...
7 F.3d at 1556.
n4 Again, although there is a considerable amount of evidence
concerning what knowledge people who worked at the Winn Dixie or in the same
shopping center had about Fidel's mental condition, this does not logically
factor into a consideration of the reasonableness or otherwise of the officers'
actions. That a Winn Dixie checkout clerk or Radio Shack employee would have
reacted differently to the situation based on his or her knowledge of Fidel's
condition does not indicate that the officers' response-- wholly uninformed by
such familiarity with Fidel-- was objectively unreasonable.
n5 Plaintiff relies on
Jackson v. City of Albany, Ga., 49 F. Supp.2d 1374 (M.D. Ga. 1998), where the
court denied the officer-defendants' motion for summary judgment based on an
assertion of qualified immunity, to support the argument that the officers used
excessive force. However, Jackson is plainly distinguishable from this case.
There, the officers approached a man matching a suspect's description that they
had been given. The man fled, the police pushed him down, and the man got up
and continued fleeing. The police caught up with him and, in the course of
being restrained, the man died of asphyxiation due to neck compression. See id. at 1376. In applying the Graham
factors and denying the officers' motion based on qualified immunity, the court
noted (1) that there was little to no evidence that this suspect had committed
any crime at all; (2) that the suspect's flight mitigated any potential threat
to the officers; and (3) that the flight alone could not establish the
reasonableness of the officers' actions. See id. at 1377. However, in the case at bar, the officers knew
that Fidel did commit a crime, and one of violence, when he physically resisted
Officer Bushing's attempts at restraining him and flailed his arms about,
striking at least one officer. Additionally, with these actions as a backdrop,
there was no reasonable assurance whatsoever that Fidel's flight lessened the threat to the officers
and to others, as Fidel had already showed himself to be physically aggressive.
Therefore, Jackson does not support the plaintiff's arguments.
n6
Apropos of this observation,
the Eleventh Circuit has recently stated, Given the [serious nature of § 1983
plaintiff's injury], we are presented with the proverbial "hard
case," that is, one in which one's natural sympathies are aroused by the
plaintiff's plight. We recall Justice Jackson's warning to judges: "We
agree that this is a hard case, but we cannot agree that it should be allowed
to make bad law." FCC v. WOKO, Inc., 329 U.S. 223, 229, 91 L. Ed. 204, 67
S. Ct. 213 ... (1946).
Rodriguez v. Farrell, 280
F.3d 1341, 1351 n.19 (11th Cir. 2002).
n7 The plaintiff also
asserts that some officers violated their duty to intervene. It is true that
"[a] police officer has a duty to intervene when another officer uses
excessive force." Post, 7 F.3d at 1560 (citing Fundiller v. City of Cooper
City, 777 F.2d 1436, 1441-42 (11th Cir. 1985)). However, this claim fails with
the conclusion that no officer used excessive force in this situation.
n8 In Florida, battery is
defined as occurring when a person "actually and intentionally touches or
strikes another person against the will of the other." Fla. Stat. §
784.03.
n9 This statutory section
states that a person who knowingly commits a battery upon, among others, a law
enforcement officer, while the officer is "engaged in the lawful
performance of his or her duties," is guilty of a third-degree felony, rather
than a battery's normal first-degree misdemeanor classification.