United States Court of Appeals,
Eleventh Circuit.
No. 95-8873.
Fanny M. RILEY, as Administratrix of the Estate of Ralph E. Lowe,
deceased; Fanny M. Riley, as next friend for the children of the
deceased, Ralph E. Lowe, as the next of kin under the laws of the
State of Georgia, Plaintiffs-Appellants-Cross-Appellees,
v.
Patrick NEWTON, individually and in his official capacity as a de
facto officer with the Richmond County Sheriff's Department, and in
his official capacity as a de facto officer with the U.S. Military
Drug Suppression Team, Defendant-Appellee,
Department of the Army, Defendant,
Richmond County, Georgia; Charles Webster, individually and in
his official capacity as the Sheriff of Richmond County, Georgia,
Defendants-Appellees-Cross-Appellants,
Kenneth J. Glisson, individually and in his official capacity as
an officer with the Richmond County Sheriff's Department,
Defendant-Appellee,
Dave Padron; Tim Padron; Steve Green; United States of
America, Defendants.
Sept. 11, 1996.
Appeals from the United States District Court for the Southern
District of Georgia. (No. CV 191-171), Dudley H. Bowen, Jr., Judge.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER*, District
Judge.
SCHWARZER, Senior District Judge:
Ralph Lowe was accidentally shot and killed while being
arrested by Patrick Newton, a military policeman, who was
accompanying Richmond County Inspector Kenneth Glisson on patrol.
Lowe's estate and his surviving children allege claims under 42
U.S.C. § 1983 (1988) against Glisson, Richmond County Sheriff
*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
Charles Webster, and the County. Claims against the United States
and other participants in the events that led to Lowe's death have
been resolved and are not before us.
The section 1983 claims allege that Lowe was seized without
probable cause and subjected to excessive force in violation of the
First, Fourth, Fourteenth, and Thirteenth Amendments. The district
court granted Glisson's motion for summary judgment, as well as
Webster's, limited to his individual capacity; it denied the
County's motion and Webster's motion in his official capacity.
Plaintiffs appeal from the order granting Glisson's motion, and the
County and the Sheriff, pursuant to leave granted by this court,
cross-appeal from the denial of their motions. We have
jurisdiction under 28 U.S.C. § 1291 and affirm the summary judgment
for Glisson and for Sheriff Webster in his individual capacity. We
reverse the order denying summary judgment for Richmond County and
for Sheriff Webster in his official capacity and remand with
directions to enter judgment for all defendants.
STANDARD OF REVIEW
We review the granting or denial of summary judgment de novo,
drawing all reasonable inferences in favor of the non-moving
parties. Swint v. City of Wadley, Alabama, 51 F.3d 988, 992 (11th
Cir.1995); Bolt v. Halifax Hosp. Medical Center, 980 F.2d 1381,
1384 (11th Cir.1993). If a genuine issue of material fact exists,
summary judgment must be denied. Hutcherson v. Progressive Corp.,
984 F.2d 1152, 1155 (11th Cir.1993).
FACTS
On the evening of September 2, 1989, as Inspector Glisson
prepared to depart on his regular patrol, he received a call from
Sgt. David Padron, an investigator on the Drug Suppression Team
(DST) at Ft. Gordon, a nearby Army installation. Padron asked to
ride with Glisson to check out local hotels for military personnel.
Padron asked Glisson if his brother, who was visiting him, could
ride along. Glisson agreed so long as the brother remained in the
vehicle, did not carry a weapon, and would be Padron's
responsibility. When Glisson met Padron and his brother that night
at the sheriff's substation, SPC. Patrick Newton was also there.
A former member of the DST, he was assigned to the military police
at Ft. Gordon and worked as a confidential source for the DST. He
came along to point out individuals whom he had earlier observed
dealing drugs.
Ft. Gordon is a large Army installation in Richmond County.
To deal with the proliferation of drugs, the military police at Ft.
Gordon formed the DST to investigate drug use and trafficking among
military personnel. The DST and personnel of the Richmond County
Sheriff's Department cooperated informally in particular criminal
matters touching on off-base activities involving military
personnel. Padron and Newton rode with Glisson from time to time
when engaged in drug investigations. Glisson was aware that the
team members' authority was limited to assisting in investigations
having a military connection and did not extend to investigations
or making of arrests in the civilian community.
That evening, Glisson was dispatched to the Barton Village
area of Augusta to respond to a complaint of a loud party. Barton
Village was known to be one of the most dangerous areas in the city
due to extensive drug trafficking and violence. On arrival at
Barton Village, Glisson spoke to the person throwing the party and
resolved the complaint without trouble. As he resumed his patrol
at about 10:30 or 11:00 p.m., he observed a white male in a pickup
truck driving through Barton Village. The truck stopped at a
corner and the driver began to speak with a black male standing at
the corner. After a few seconds, the black male got into the
vehicle with the white male. Glisson recognized this incident as
typical of a street-corner drug deal, a scenario he had seen
repeatedly. He decided to make an investigatory stop. As he
turned on his blue lights, the truck pulled over to the curb and
stopped. When Glisson and the others got out of the car, however,
the truck sped away. Glisson and Newton jumped back into the car
and Glisson gave chase. He cut in front of the truck, forcing it
to stop.
Glisson then exited the car and, with his revolver drawn,
approached the truck on the driver's side. He repeatedly
instructed the driver (later identified as Steven Green) to turn
off the ignition and show his hands but the driver did not comply.
When he reached the truck, Glisson opened the door, reached in and
pulled the driver out, and placed him on the ground. At this
point, Padron came up and handed him handcuffs which he snapped on
Green.
Glisson then returned to his car to turn off the siren and
call for a transport unit. As he passed the window on the truck,
he observed that Newton was straddling the passenger (later
identified as Ralph Lowe, plaintiffs' deceased) on the ground while
attempting to handcuff him. Glisson saw them struggling; Lowe had
one hand handcuffed and the other free. As he moved toward his
car, he heard a shot. He then heard the man on the ground say "You
shot me." Newton turned to Glisson and said, "He hit my gun and it
went off." Glisson then returned to his car and called for an
ambulance and for Maj. Ronnie Strength of the Sheriff's Department.
INSPECTOR GLISSON'S INDIVIDUAL LIABILITY
Excessive Force. While the district court opinion, and much
of the discussion in the parties' briefs, focuses on the legality
of the initial and subsequent stops, the crucial issue is whether
Glisson can be held liable for Newton's seizure of and use of force
on Lowe for which plaintiffs seek relief. The district court
granted summary judgment on all claims challenging the legality of
the two stops of Green's truck. We need not address the issues
relating to the stops, however, because they are not relevant to
Glisson's liability for Newton's acts.
Plaintiffs concede that Newton acted "without any explicit
direction from Glisson." (P. Br. 16.) But they argue (apparently
for the first time on appeal) that Glisson "was either idly
standing by or failed to supervise Newton." Id. This court has
held that "an officer who is present at the scene and who fails to
take reasonable steps to protect the victim of another officer's
use of excessive force, can be held liable for his nonfeasance."
Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th
Cir.1995). Plaintiffs have come forward with no facts from which
a jury could find that Glisson failed to take reasonable steps to
protect Lowe from excessive force. The undisputed facts establish
that Glisson was engaged in making the arrest of Green while
Newton, on his own, was dealing with Lowe. They were on opposite
sides of the truck. When he saw Newton struggling with Lowe,
Glisson observed no use of excessive force which might have given
rise to a duty to intervene to stop it, nor did he have an
indication of the prospective use of excessive force—none occurred
until Newton's weapon fired. Because Glisson had no reason to
expect the use of excessive force until after it had occurred, he
had no reasonable opportunity to protect Lowe, and the obligation
to take steps to protect him never arose. See O'Neill v.
Krzeminski, 839 F.2d 9, 11-12 (2d Cir.1988) ("The three blows were
struck in such rapid succession that Conners had no realistic
opportunity to attempt to prevent them. This was not an episode of
sufficient duration to support a conclusion that an officer who
stood by without trying to assist the victim became a tacit
collaborator.")
The Posse Comitatus Act. Plaintiffs' principal contention is
that Glisson and the other defendants violated the Posse Comitatus
Act. That Act provides:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, wilfully
uses any part of the Army or the Air Force as a posse
comitatus or otherwise to execute the laws shall be fined not
more than $10,000 or imprisoned not more than two years, or
both.
18 U.S.C. § 1385 (1988).
The district court held that Glisson was entitled to qualified
immunity on this claim and we agree. "Qualified immunity protects
government officials performing discretionary functions from civil
trials ... and from liability if their conduct violates no "clearly
established statutory or constitutional rights of which a
reasonable person would have known.' " Lassiter v. Alabama A & M
Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
396 (1982)). "For the law to be clearly established to the point
that qualified immunity does not apply, the law must have earlier
been developed in such concrete and factually defined context to
make it obvious to all reasonable government actors, in the
defendant's place, that "what he is doing' violates federal law."
Lassiter, 28 F.3d at 1149 (quoting Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)).
The law of this circuit has not been developed to make it
obvious to law enforcement officers what constitutes "wilful use"
of the Army "to execute the laws." Specifically, our case law does
not make obvious what activities constitute "executing the law" for
purposes of the Act; it does not delineate at what point or under
what circumstances a joint investigation with military personnel
would violate the Posse Comitatus Act. And even more importantly
here, our case law does not give any guidance as to what
constitutes "wilful use" in the event that the military person's
actions would clearly constitute "executing the law."
This court was first faced with a possible violation of the
Posse Comitatus Act in United States v. Hartley, 678 F.2d 961, 978
n. 24 (11th Cir.1982), aff'g 486 F.Supp. 1348 (M.D.Fla.1980), cert.
denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 (1983), and
cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983).
In Hartley, we held that the Act was not violated where military
inspectors assisted civilian employees in investigating activities
devised to defraud the government. Hartley, 678 F.2d at 978
(military assistance in the form of handling and testing of shrimp
after it had been shipped to government warehouses). In so
holding, the court cited three different tests that had been
articulated in the Eighth Circuit1 and cited by the district court
in Hartley: "(1) whether civilian law enforcement officials had
made "direct active use' of the military to "execute the laws;'
(2) whether the use of the military "pervaded the activities' of
the civilian officials; or (3) whether the military was used so as
to subject "citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory.' " Hartley, 678 F.2d at
978 n. 24; see United States v. McArthur, 419 F.Supp. 186 (D.N.D.)
(setting out the three different tests), aff'd sub nom. United
States v. Casper, 541 F.2d 1275 (8th Cir.1976), cert. denied, 430
U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). Applying these
1
The Eighth Circuit also considered the Act in Bissonette v.
Haig, 776 F.2d 1384 (8th Cir.1985); aff'd en banc, 800 F.2d 812
(8th Cir.1986), aff'd, 485 U.S. 264, 108 S.Ct. 1253, 99 L.Ed.2d
288 (1988). In that case, plaintiffs sought damages based on
federal officials' alleged violation of the Fourth Amendment in
connection with the occupation of the village of Wounded Knee by
federal authorities, including the United States Army. The court
held that an allegation of violation of the Act was sufficient to
state a Bivens claim under the Fourth Amendment. Putting aside
the thorny question whether we may look to the law of other
circuits to determine whether clearly established law was
violated, see Hansen v. Soldenwagner, 19 F.3d 573, 578 n. 6 (11th
Cir.1994), Bisonnette could not be said to clearly establish the
law as to whether the situation at issue here constituted a
violation of the Posse Comitatus Act. Bissonette passes on the
sufficiency of allegations in a complaint; it provides no
guidance to one in Glisson's position whose military passenger,
lawfully present on a joint drug patrol, attempts on his own
initiative to make an arrest that leads to the application of
excessive force.
tests in United States v. Bacon, 851 F.2d 1312 (11th Cir.1988), we
held that the Act was not violated where an Army investigator aided
civilian personnel in a drug investigation because the military
participation "did not pervade the activities of the civilian
officials, and did not subject the citizenry to the regulatory
exercise of military power." Id. at 1314 (army investigator
assumed undercover role in drug "buys," army funds were used for
some of the buys, and army investigator turned over to local
authorities drugs and other evidence to assist in the prosecution
of a civilian defendant). These cases make clear that, at least
under some circumstances, joint investigations with the military do
not constitute violations of the Posse Comitatus Act. Thus, merely
allowing Newton to ride along to investigate possible drug activity
was not a violation of clearly established law.
Our case law does not speak to whether a joint investigation
which culminates in the military person arresting a civilian is a
violation of the Posse Comitatus Act. Assuming, however, that a
willful use of a military person to make an arrest would be a
violation of the Act under the plain words of the statute (as
making an arrest would seem to be a quintessential execution of the
law), no case law makes it clear that Glisson could be said to have
wilfully used Newton to make an arrest. The evidence fails to show
that Glisson at any point instructed or encouraged Newton to assist
him in the arrests; instead Newton became involved in arresting
Lowe upon Newton's own initiative. Absent case law defining
"wilful use" as the failure to prevent military personnel from
making arrests when participating in a joint investigation, Glisson
cannot be said to have violated clearly established law.
Because no reported decisions "make it obvious to ... [one] in
the defendant's place, that "what he [was] doing' violates federal
law," Lassiter, 28 F.3d at 1149, we hold that Glisson was entitled
to qualified immunity.
SHERIFF WEBSTER'S INDIVIDUAL LIABILITY
The district court held that Sheriff Webster was entitled to
summary judgment in his individual capacity and we agree.
Defendants concede that Sheriff Webster did not personally
participate in any actions leading to the seizure and death of
Lowe. But they contend that he may be held liable in his
individual capacity for acts or omissions which proximately led to
the violation of Lowe's rights, specifically, that the Sheriff
should have trained his deputies in the proper use of military
personnel who would be working with them.
Like Glisson, Webster is protected by qualified immunity if
"[his] conduct violates no "clearly established statutory or
constitutional rights of which a reasonable person would have
known.' " Lassiter, 28 F.3d at 1149 (quoting Harlow, 457 U.S. at
818, 102 S.Ct. at 2738). Plaintiffs cite to no law or
constitutional right that required Webster to train the Department
on how to use Army personnel. Instead, plaintiffs point to Canton
v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204-05, 103 L.Ed.2d
412 (1989). That case, however, provides the standard for when a
municipality can be held liable for a failure to train in general;
it does not speak at all to when an individual is responsible for
failure to train his subordinates, much less require that a sheriff
train a department on how to use Army personnel. See id. ("For
the law to be clearly established to the point that qualified
immunity does not apply, the law must [be] concrete and factually
defined....") (quoting Anderson v. Creighton, 483 U.S. 635, 640,
107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Plaintiffs having
cited no specific law which Webster's inaction might have violated,
he is entitled to immunity from suit.
OFFICIAL LIABILITY OF SHERIFF WEBSTER AND THE COUNTY
Constitutional violation. Plaintiffs' claims are based on
alleged violations of section 1983. "Local government may not be
sued under § 1983 ... [unless] execution of a government's policy
or custom ... inflicts the injury...." Monell v. New York City
Dept. of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56
L.Ed.2d 611 (1977). The district court misconceived the basis of
municipal liability when it denied summary judgment on the ground
that there was "a genuine issue of material fact as to whether the
County used Newton as a de facto deputy on September 2, 1989 ...
[and] whether Richmond County officials ever approved of or
acquiesced in Newton's choice of weapon." Under Monell, liability
cannot be imposed on a respondeat superior theory. The County's
use of Newton on September 2, or its lack of oversight of his
choice of weapon, could not establish the existence of a policy or
custom to use the military to enforce the law in violation of the
Posse Comitatus Act or of any other policy or custom, much less one
that may have "caused" the county's officials to subject plaintiffs
to the injury complained of. See Monell, 436 U.S. at 692, 98 S.Ct.
at 2036-37. Plaintiffs have failed to come forward with facts from
which a jury could find the existence of any policy or custom
leading to a violation of plaintiffs' constitutional rights.
Nor have plaintiffs come forward with facts to support their
claim that the County violated section 1983 by failing to train its
personnel, in particular Glisson, regarding the use of military
personnel to enforce civil law. The district court, relying on
Glisson's testimony that he had not received instructions with
respect to the use of DST personnel and Newton, denied summary
judgment because "Defendants have not established that this
deficient training ... did not cause the alleged deprivation of
Lowe's constitutional rights." However, a section 1983 claim for
inadequate training exists "only where the failure to train amounts
to deliberate indifference to the rights of persons with whom the
police come into contact." Canton, 489 U.S. at 388, 109 S.Ct. at
1204. The failure to train must reflect a "deliberate" or
"conscious" choice and the deficiency "must be closely related to
the ultimate injury." Id. at 389, 391, 109 S.Ct. at 1205, 1206.
Failure to train only becomes "deliberate" where "in light of the
duties assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so likely
to result in the violation of constitutional rights, that the
policy makers of the city can reasonably be said to have been
deliberately indifferent to the need." Id. at 390, 109 S.Ct. at
1205. No facts to sustain such a jury finding have been offered.
Summary judgment. The district court held that if Newton
acted as a de facto deputy of the County and "if the shooting was
the result of a County policy, practice and custom, the County and
Webster may be liable." To deny summary judgment on that ground,
however, the court would have had to determine that plaintiffs had
raised a genuine issue of material fact by coming forward with
evidence from which a jury could find the existence of such a
policy, practice, or custom. Instead, the court placed the burden
on defendants, denying summary judgment because "Defendants have
failed to carry their burden of establishing that there are no
genuine issues of material fact regarding Plaintiffs' claim that
Richmond County had a custom of using Patrick Newton as a de facto
deputy and of allowing him to use a MAC 11 ... [and] Defendants
have not established that this custom, if it existed, was not the
moving force behind the alleged deprivation of Lowe's
constitutional rights."
The ruling below reflects a misconception of the summary
judgment procedure. The Supreme Court has made it clear that Rule
56 does not require "that the moving party support its motion with
affidavits or other similar materials negating the opponent's
claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106
S.Ct. 2548, 2553, 2554, 91 L.Ed.2d 265 (1986) ("[T]he Adickes [v.
S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970) ] language quoted above should [not] be construed to mean
that the burden is on the party moving for summary judgment to
produce evidence showing the absence of a genuine issue of material
fact.... [T]he burden on the moving party may be discharged by
"showing"—that is, pointing out to the district court—that there is
an absence of evidence to support the nonmoving party's case.").
In Ryder Intern. Corp. v. First Am. Nat. Bank, 943 F.2d 1521, 1523
(11th Cir.1991), this court said that "[s]ummary judgment should be
granted ... when, after adequate time for discovery and upon
motion, a party fails to make a sufficient showing to establish the
existence of an element essential to that party's case on which the
party bears the burden of proof at trial." In Hammer v. Slater, 20
F.3d 1137 (11th Cir.1994), we said that "[f]or issues on which the
non-moving party will bear the burden of proof at trial, the
non-moving party must either point to evidence in the record or
present additional evidence "sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency.' " Id. at 1141 (quoting Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1116-17 (11th Cir.1993)). And in Spence v.
Zimmerman, 873 F.2d 256 (11th Cir.1989), we said: " "Rule 56(c)
mandates the entry of summary judgment ... against a party who
fails to make a showing sufficient to establish the existence of an
element essential to the party's case, and on which that party will
bear the burden of proof at trial.' .... "Summary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather, as an integral part of the Federal Rules as
a whole, which are designed "to secure the just, speedy and
inexpensive determination of every action.' " Id. at 257 (quoting
Celotex, 477 U.S. at 323, 327, 106 S.Ct. at 2552-53, 2554-55).
In denying the motions of these defendants for summary
judgment, the district court applied incorrect legal standards and
erroneously shifted the burden of producing issuable facts.
Because the record shows that defendants are entitled to judgment,
we remand with directions to enter judgment in their favor.
AFFIRMED in part, REVERSED in part.