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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15535
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D.C. Docket No. 3:10-cv-00695-HES-PDB
JOANN COOPER,
individually and as next friend of D.C.,
Plaintiff - Appellant,
CARL COOPER,
as a parent and natural guardian of A.C., a minor,
Consolidated Plaintiff,
versus
JOHN RUTHERFORD,
in his official capacity as Sheriff of the Consolidated
City of Jacksonville and Duval County, Florida,
RYAN BLACK,
individually,
DARRIES GRIFFITH,
individually,
JESSIE YORK,
individually,
JASON LEDERMAN,
individually, et al.,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 29, 2020)
Before JORDAN, TJOFLAT, and HULL, Circuit Judges.
PER CURIAM:
Joann Cooper and her children were in their car in the drive-through lane of a
Wendy’s restaurant in Jacksonville when a bank robbery suspect, with gun in hand,
forced his way into the car. During an ensuing shootout, Jacksonville police officers
fired dozens of shots at the car, and Ms. Cooper and her son were both seriously
injured by the gunfire. See Cooper v. Rutherford, 503 F. App’x 672, 673 (11th Cir.
2012).
Ms. Cooper, on behalf of herself and her son, sued the Jacksonville Sheriff in
his official capacity, and several Jacksonville officers in their individual capacities.
She asserted claims for Fourth Amendment and Fourteenth Amendment violations
under 42 U.S.C. § 1983, and state-law claims for negligence and battery.
The district court granted qualified immunity in favor of the individual
officers, with the exception of Officer Black, who had fired 24 shots. When the case
first came before us on interlocutory appeal, we ruled that Officer Black was entitled
to qualified immunity on the § 1983 claims. Assuming that Officer Black violated
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the constitutional rights of Ms. Cooper and her son, we ruled that (a) pre-existing
law did not “clearly establish that [Ms. Cooper and her son] were seized when
Officer Black’s bullet accidentally struck them during the confrontation with the
armed bank robber;” (b) the case was not one in which the general Fourth
Amendment rule prohibiting excessive force applied with obvious clarity; and (c)
there was no case law clearly establishing that Officer Black violated the Fourteenth
Amendment’s substantive due process guarantee. See Cooper, 503 F. App’x at 675-
77.
When the case returned to the district court, the Sheriff moved for summary
judgment on the official capacity claims. The district court granted the Sheriff’s
motion for summary judgment. See D.E. 122. On the Fourth Amendment claim,
the district court concluded that Ms. Cooper and her son could not show that they
were subject to an unreasonable seizure when they were hit by police gunfire. See
id. at 10–12. On the substantive Fourteenth Amendment claim, the district court
concluded that Ms. Cooper and her son could not show that the Sheriff or the officers
intended to cause them harm. See id. at 13–14. On the state-law claims, the district
court concluded that sovereign immunity applied because challenged actions were
discretionary. See id. at 14–16.
On appeal, Ms. Cooper and her son challenge all of these rulings in favor of
the Sheriff. Following oral argument, and a review of the record, we affirm.
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Because we write for the parties, we assume their familiarity with the record, and set
out only what is necessary to explain our decision.
II
We review a district court’s summary judgment order de novo. See Troupe v.
Sarasota Cty., Fla., 419 F.3d 1160, 1165 (11th Cir. 2005). In exercising this plenary
review, “[w]e use the same legal standards as the district court and draw evidentiary
inferences in favor of the nonmoving party.” Reyes v. Maschmeier, 446 F.3d 1199,
1202 (11th Cir. 2006) (citation omitted).
III
The § 1983 official capacity claims against the Sheriff—the Fourth
Amendment claim and the Fourteenth Amendment substantive due process claim—
are claims against the sovereign, i.e., the government entity. See Lewis v. Clarke,
137 S. Ct. 1285, 1291 (2017); Kentucky v. Graham, 473 U.S. 159, 165 (1985);
Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999). A municipality cannot
be “vicariously liable under § 1983 for [its] employees’ actions.” Connick v.
Thompson, 563 U.S. 51, 60 (2011). Instead, “[a] municipality or other local
government may be liable under [§ 1983] if the governmental body itself ‘subjects’
a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” Id. (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 692
(1978)). Specifically, a plaintiff “must ultimately prove that the [municipality] had
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a policy, custom, or practice that caused the deprivation.” Hoefling v. City of Miami,
811 F.3d 1271, 1279 (11th Cir. 2016). Liability will not attach “unless a municipal
‘policy’ or ‘custom’ is the moving force behind the constitutional violation.” City of
Canton v. Harris, 489 U.S. 378, 379 (1989).
The district court, given its merits rulings, did not address whether there was
a municipal policy, custom, or practice that caused the alleged constitutional
violations. See D.E. 122 at 14. But on appeal the Sheriff again argues, as an
alternative ground for affirmance, that there was no showing of any such policy,
custom, or practice. See Br. for Appellee at 27–35. Ms. Cooper contends that there
are material issues of fact on this issue. See Br. for Appellants at 29–34. As
explained below, we agree with the Sheriff. Assuming that the officers violated the
Fourth and Fourteenth Amendment rights of Ms. Cooper and her son by firing their
weapons and striking them with some of their shots, the record does not create a jury
question on municipal liability.
A
Ms. Cooper is proceeding on a failure to train theory. She argues that the
Jacksonville Sheriff’s Office was deliberately indifferent to the lives of its citizens
by not training its officers on the proper protocol for discharging firearms when
innocent bystanders are present. She asserts that the need to train officers on the use
of deadly force in hostage situations is so obvious, and the potential for killing or
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injuring an innocent civilian is so high, that the Sheriff was deliberately indifferent
to her constitutional rights and those of her son.
“[T]he inadequacy of police training may serve as the basis for § 1983
[municipal] liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact. . . .
Only where a municipality’s failure to train its employees in a relevant respect
evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a
shortcoming be properly thought of as a city ‘policy or custom’ that is actionable
under § 1983.” Harris, 489 U.S. at 388–89.
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.
Thus, when city policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate citizens’
constitutional rights, the city may be deemed deliberately indifferent if the
policymakers choose to retain that program.” Connick, 563 U.S. at 61 (citations and
internal quotation marks omitted). See also Pembaur v. City of Cincinnati, 475 U.S.
469, 483 (1986) (“[M]unicipal liability under § 1983 attaches where—and only
where—a deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy with
respect to the subject matter in question.”).
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“A municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick, 563 U.S. at 61. Nevertheless,
there may be “rare” failure to train cases in which “the unconstitutional
consequences of failing to train [are] so patently obvious” that a municipality may
be liable under § 1983 “without proof of a pre-existing pattern of violations.” Id. at
64. The Supreme Court has theorized that one such scenario may be a failure to train
officers who are armed on how to deal with fleeing felons, given the frequency of
that particular occurrence. See id. at 63–64.
B
For a number of reasons, we conclude that the Sheriff is entitled to summary
judgment on the § 1983 municipal liability claims of Ms. Cooper and her son.
First, “[t]o establish a ‘deliberate or conscious choice’ or . . . ‘deliberate
indifference,’ a plaintiff must present some evidence that the municipality knew of
a need to train and/or supervise in a particular area and the municipality made a
deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346,
1350 (11th Cir. 1998). Because “decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations of constitutional
rights” unless they have “notice that a course of training is deficient in a particular
respect,” a “pattern of similar constitutional violations is ordinarily necessary to
demonstrate deliberate indifference for purposes of failure to train.” Connick, 563
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U.S. at 62.
Ms. Cooper has not presented any evidence of prior similar incidents where
bystanders or hostages were injured due to officers exchanging gunfire with a
suspect. Because there was “no evidence of a history of widespread prior abuse . . .
[that] put the [S]heriff on notice of the need for improved training or supervision,”
Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990), there is no jury question on
the matter of deliberate indifference.
Second, this is not the “rare” failure to train scenario where the likelihood for
constitutional violations is so high that the need for training would be obvious. As
Ms. Cooper acknowledges, the Jacksonville Sheriff’s Office had a policy generally
providing that officers should not discharge their weapons into moving vehicles
except as a last resort (i.e., when all other opportunities have been exhausted, to
prevent death or great bodily harm to the officer or other persons, or to prevent the
escape of a fleeing felon who would pose an imminent threat of death or great bodily
harm). That same policy instructed officers to “exercise reasonable caution in order
to avoid unnecessarily endangering the lives of bystanders. When possible, officers
should give consideration to the backdrop, bystanders, and location.” See D.E. 115-
1 at 48–49.
We recognize that this general admonition did not specifically address the
discharge of weapons in a hostage situation involving a non-moving vehicle. But
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given the general instruction that officers should use reasonable caution to avoid
unnecessary danger to others when deciding whether to discharge their weapons,
Ms. Cooper and her son cannot create a jury question on deliberate indifference. We
note that Officers Black and Griffith were administratively found to have violated
the “response to resistance” and “deadly force” policies of the Jacksonville Sheriff’s
Office, and resigned in lieu of termination. So this was not a case of a municipality
turning a blind eye to a first-time violation of its policies. Although we do not
necessarily agree with the Sheriff that his policies “exceed” constitutional standards,
see Br. for Appellee at 31 n.17, we do conclude that they do not demonstrate
deliberate indifference. Cf. Ross v. Town of Austin, 343 F.3d 915, 918 (7th Cir.
2003) (Ҥ 1983 imposes on municipalities no constitutional duty to provide law
enforcement officers with advanced, specialized training [e.g., hostage negotiation
and tactical combat training] based upon a general history of criminal activity [e.g.,
armed robberies] in the community”).
IV
Florida law generally prohibits the state or a municipality from being “held
personally liable in tort or named as a party defendant in any action for any injury
or damage suffered as a result of any act, event, or omission of action in the scope
of her or his employment or function.” Fla. Stat. § 768.28(9)(a). The Florida
Supreme Court has ruled that § 768.28(9)(a) provides immunity from suit, rather
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than simply from liability. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012).
Florida, however, has waived its sovereign immunity (and that of its
municipalities and subdivisions) “under circumstances in which the state or agency
or subdivision, if a private person, would be liable to the claimant, in accordance
with the general laws of [the] state.” See Fla. Stat. § 768.28(1). Even if a complaint
contains adequate allegations showing that a private person would be liable in tort,
the sovereign immunity waiver does not apply if the challenged act was
“discretionary” rather than “operational.” See Lewis v. City of St. Petersburg, 260
F.3d 1260, 1262 (11th Cir. 2001).
Under Florida law, an “operational” act is “one not necessary to or inherent in
policy or planning, that merely reflects a secondary decision as to how those policies
or plans will be implemented,” while discretionary acts involve “an exercise of
executive . . . power such that, for the court to intervene by way of tort law, it
inappropriately would entangle itself in fundamental questions of policy and
planning.” Kaisner v. Kolb, 543 So. 2d 732, 737 (Fla. 1989). Indeed, the Florida
Supreme Court has explained that the state and its subdivisions have “discretionary
power to enforce compliance with the law, as well as the authority to protect public
safety.” Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 919
(Fla. 1985).
Ms. Cooper argues that the district court erred in concluding that the so-called
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police-emergency exception entitled the Sheriff to sovereign immunity. She
contends that, given the facts here, the actions of the responding officers were
operational and not discretionary. Because the officers’ actions should have been
viewed as operational, she continues, the district court erred in applying sovereign
immunity.
As a general matter, the Florida Supreme Court has stated that “[t]he decision
of whether to enforce the law by making an arrest is a basic judgmental or
discretionary governmental function that is immune from suit.” Everton v.
Willard, 468 So.2d 936, 937 (Fla. 1985). Moreover, it has also said that in
emergency circumstances sovereign immunity applies to acts of decision-making
that would normally be considered “operational” but become “discretionary.” See
Kaisner, 543 So. 2d at 738 n.3 (“The way in which government agents respond to a
serious emergency is entitled to great deference, and may in fact reach a level of
such urgency as to be considered discretionary and not operational.”) (dicta). To fall
within the so-called police-emergency exception,
the serious emergency must be one thrust upon the police by
lawbreakers or other external forces, that requires them to choose
between different risks posed to the public. In other words, no matter
what decision police officers make, someone or some group will be put
at risk; and officers thus are left no option but to choose between two
different evils. It is this choice between risks that is entitled to the
protection of sovereign immunity in appropriate cases, because it
involves what essentially is a discretionary act of executive decision-
making.
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City of Pinellas Park v. Brown, 604 So. 2d 1222, 1227 (Fla. 1992) (dicta) (footnote
omitted). See also Rodriguez v. Miami-Dade Cty., 117 So. 3d 400, 408 (Fla. 2013)
(explaining the narrow nature of the exception, and noting that the Florida Supreme
Court has never applied it to provide immunity).
Here, the officers responded to the fleeing armed suspect out of necessity and
took swift action to prevent harm. Given the choices available to them—allowing
an armed suspect to escape with multiple hostages and potentially starting a police
chase or keeping an armed suspect with hostages (who might in any event be
harmed) in a car in a restaurant drive-through—we conclude that the police
emergency exception applies. Under Florida law, “the actual execution of a hot-
pursuit policy is entitled to a high degree of judicial deference consistent with reason
and public safety.” Pinellas Park, 604 So.2d at 1226 (dicta). See also id. at 1226–
27 (“special deference is given to pressing emergencies, and . . . certain police
actions may involve a level of such urgency as to be considered discretionary and
not operational”).
Although the Florida Supreme Court has never applied the police-emergency
exception, see Rodriguez, 117 So.3d at 407–08, the Third District has done so in a
case that is similar to the one here. In Robles v. Metropolitan Dade County, 802
So.2d 453 (Fla. 3d DCA 2001), a police officer shot at a man who had hijacked a
school bus, and flying debris hit one of the children on the bus, causing him to lose
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sight in one eye. At the time of the shooting there were 13 children and several
adults on the bus, and the police had been told that the hijacker potentially had an
explosive device. The officer who fired at the hijacker said he did so because he
feared for his safety and the life of the children on the bus. See id. at 454. The
child’s parents sued the county, alleging that the officer had acted negligently in
shooting at the hijacker under the circumstances. An expert for the parents opined
that the officer, though confronted with an emergency, and faced with various
courses of action—“each of which posed a potential threat to the public”—acted
negligently in shooting at the hijacker. See id. The trial court nevertheless granted
summary judgment in favor the county, ruling that it was entitled to immunity under
the police-emergency exception, and the Third District affirmed. Applying City of
Pinellas Park, the Third District concluded that the officer was faced with choosing
between courses of action that would each put someone at risk: “‘It is this choice
between risks that is entitled to the protection of sovereign immunity in appropriate
cases, because it involves what essentially is a discretionary act of executive decision
making.’” Id. at 455 (quoting City of Pinellas Park, 604 So.2d at 1227).
In the absence of any conflicting case law from the Florida appellate courts,
we follow Robles and apply the police-emergency exception. The officers here were
confronted with an emergency and faced difficult choices, each of which presented
risks to themselves, to the hostages, and to the public at large. We conclude,
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therefore, that sovereign immunity shields the Sheriff from liability on the state-law
battery and negligence claims.
IV
Having found no grounds for reversal, we affirm the district court’s grant of
summary judgment to the Sheriff.
AFFIRMED.
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