[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13477 April 29, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00227-CV-ORL-18-KRS
RAMON A. MERCADO,
Plaintiff-Appellant,
versus
CITY OF ORLANDO, a municipal
corporation and political subdivision of the State
of Florida; RAMFIS PADILLA, Officer, individually
and as an agent and employee of the City of Orlando and
Orlando Police Department, and CHRISTINA ROUSE,
Officer, individually and as an agent and employee of the
City of Orlando and Orlando Police Department.
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 29, 2005)
Before MARCUS, FAY and SILER *, Circuit Judges.
SILER, Circuit Judge:
Plaintiff Ramon A. Mercado appeals the grant of summary judgment in
favor of the defendants City of Orlando (“Orlando”), and police officers Ramfis
Padilla and Christina Rouse on his 42 U.S.C. § 1983 claims for the use of
excessive force when detaining him and preventing him from committing suicide.1
For the following reasons, we REVERSE and REMAND on the issue of qualified
immunity with respect to Padilla and AFFIRM on all other issues.
I.
In 2002, Mercado and his wife, Ibis, had a heated argument, during which
Ibis told Mercado that she wanted to end their marriage and return to Puerto Rico
without him. Mercado became despondent, began to cry, and tried to convince her
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
1
Mercado does not appeal the district court’s grant of summary judgment to the
defendants on his Fifth, Sixth, and Eighth Amendment claims. His appellate brief only
challenges the district court rulings on the Fourth Amendment and negligence issues.
His alternative argument, that his Fourteenth Amendment rights were violated, is without
merit because there is no question that Mercado was in custody at the time of the seizure. A
suspect is in custody whenever an officer “restrains the freedom of a person to walk away, he has
seized that person.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)
(citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607
(1975)). Because the police surrounded Mercado and there was no way for him to escape, he
was “seized” for the purposes of the Fourth Amendment. Even if Mercado was not seized at the
point when he was surrounded by police, he was seized at the time he was struck by the
projectile from the Sage Launcher. See Carr v. Tatangelo, 338 F.3d 1259, 1268 (11th Cir. 2003).
2
to stay, telling her that he would commit suicide if she left him. To demonstrate
his intent, he wrapped a telephone cord around his neck and attached the other end
to a ceiling vent. Mercado used a kitchen knife to make multiple cuts on his arms.
He then grasped the knife with both hands and pointed it toward his heart.
Ibis called the Orlando Police Department and reported the attempted
suicide, and officers were dispatched to her apartment. Rouse and Padilla were
among those officers who arrived at Mercado’s residence. Ibis told the officers
that Mercado was armed with a knife and had threatened to commit suicide. The
police attempted to make verbal contact with Mercado for twenty minutes from
outside the apartment door. When this attempt was unsuccessful, the officers
entered the apartment with Ibis’s permission.
Inside, the officers found Mercado sitting on the kitchen floor, crying. He
was holding the knife in both hands and pointing it toward his heart. The
telephone cord was still wrapped around his neck, but there is no evidence that it
was still wrapped around the ceiling vent. The officers identified themselves and
ordered Mercado to drop his knife at least two times (once in English and once in
Spanish), but he refused without making any threatening moves toward the
officers. At no time did the officers warn Mercado that force would be used if he
did not drop his weapon.
3
Fifteen to thirty seconds after giving that order, Padilla followed Rouse’s
orders to hit Mercado with the Sage SL6 Launcher (“Sage Launcher”) and subdue
him.2 The Sage Launcher is a “less lethal” munition that fires a polyurethane baton
that is 1.5 inches wide, travels approximately 240 feet per second, and delivers a
force of 154 foot/pounds of energy–approximately the energy of a professionally-
thrown baseball. The Sage Launcher was designed to be used to protect persons
from self-inflicted injury, especially when using a night stick or baton would be
unsafe or impractical. The projectile is not designed to penetrate the body, but
only to leave bruises.
From a distance of approximately six feet, Padilla had a clear view and fired
the Sage Launcher twice, hitting Mercado once in the head.3 Padilla claims that he
was aiming at Mercado’s shoulder. The impact fractured Mercado’s skull,
resulting in brain injuries. He now takes medication to prevent seizures, and he
suffers from a host of ailments including headaches, loss of memory, loss of
balance, insomnia, dizziness, stuttering, loss of sensation and movement, loss of
2
Although the officers claim that Mercado was “turning blue” from oxygen deprivation at
the time that Padilla hit him with the Sage Launcher, another officer stated that he did not turn
blue until after he was shot. Because this is a motion for summary judgment, we must view all
evidence in the light most favorable to the non-moving party and assume that Mercado was not
suffocating when the police entered his apartment.
3
According to Mercado’s deposition and medical evidence, he was only hit by one rubber
baton, so the other shot must have missed Mercado entirely.
4
strength, and sensitivity to light. He is disabled and cannot work.
Padilla was trained on the acceptable uses of the Sage Launcher. He was
also aware of Orlando Police Department policies concerning the weapon,
specifically, that “[t]argeting the head or neck with the baton or Sage SL6
projectile is acceptable in deadly force situations only.” Furthermore, the policy
defines “deadly force” as “force that is likely to cause death or great bodily harm.”
The policies also provide that a crisis negotiation team shall be dispatched when a
subject threatens to commit suicide, has the apparent ability to do so, and refuses to
surrender.
Shortly after the incident, another officer tested Padilla’s Sage Launcher for
accuracy. The weapon was in proper working order and was accurate up to a
distance of five yards. In her deposition, Rouse testified that the incident did not
require deadly force; however, Padilla stated that the situation might have required
such force. The defendants’ expert testified that deadly force would not be
appropriate under these facts and that he would not have purposely aimed the Sage
Launcher at Mercado’s head.
Mercado sued Padilla and Rouse in both their individual and official
capacities, alleging that they used unreasonable force in detaining him, and thus
violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth
5
Amendments. He asserted a Monell claim against Orlando, claiming that the city
has a policy of using excessive force against its citizens. He also asserted state-law
claims against Orlando for negligence in training and supervising Padilla and
Rouse.
Later, the defendants filed a motion in limine to prevent, inter alia, the
introduction of a statement by Mercado’s sister, Limarie Vargas, concerning a
conversation with Officer Angel Burgos on the night of the incident. Burgos
allegedly told Vargas that Orlando trains its officers to “shoot people in the head,”
not the body. The district court determined that the statement was inadmissible
hearsay.
The district court granted summary judgment to the defendants, stating that
the officers did not use excessive force against Mercado and were afforded
qualified immunity. It also dismissed the Monell and negligence claims against
Orlando for lack of evidentiary support.
II.
We review the district court’s grant of summary judgment de novo. Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Summary judgment is appropriate
when the “pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
6
any material fact and that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. Pro. R. 56(c). When making this determination, we view all
facts in the light most favorable to Mercado, the non-moving party. See Skrtich v.
Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Furthermore, we review the
district court’s grant of a motion in limine for abuse of discretion. Chrysler Intern.
Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir. 2002).
A. Mercado’s Claim Against the Officers for Excessive Force4
Mercado can only state a claim under Fourth Amendment against Rouse and
Padilla if the officers are not entitled to qualified immunity. “Qualified immunity
offers complete protection for government officials sued in their individual
capacities as long as their conduct violates no clearly established statutory or
constitutional rights of which a reasonable person would have known.” Ferraro,
284 F.3d at 1193-94 (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.
2001)) (internal quotation marks omitted). Qualified immunity allows government
employees to carry out their discretionary duties without fear of litigation,
“protecting from suit all but the plainly incompetent or one who is knowingly
4
Mercado also sued both officers in their official capacities. However, Mercado’s
opening brief to this court only addresses the issue of the officers’ qualified immunity for acts
done in their individual capacity. Because Mercado did not argue that the district court erred in
granting summary judgment to the officers in their official capacities, this argument should be
deemed waived. See Four Seasons Hotel and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d
1164, 1167 n.4 (11th Cir. 2004).
7
violating the federal law.” Id. at 1194 (citation and internal quotation marks
omitted).
In order for the defendants to claim protection for qualified immunity, they
must first demonstrate that they were engaged in a discretionary duty. Holloman v.
Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Because the defendants were
trying to apprehend a potentially suicidal subject, they were clearly engaged in a
discretionary capacity. The burden, then, shifts to Mercado to show that qualified
immunity is not appropriate by satisfying a two-part inquiry. Courson v.
McMilliam, 939 F.2d 1479, 1487 (11th Cir. 1991). First, viewing the evidence in
the light most favorable to him, he must show that the officers violated a
constitutional right. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L.
Ed. 2d 272 (2001). If such violation occurred, then we must determine if that right
was clearly established at the time of the incident. Id.
1. Whether the Officers Violated Mercado’s Constitutional Rights
The Fourth Amendment’s freedom from unreasonable searches and seizures
includes the right to be free from excessive force during a criminal apprehension.
Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443
(1989). In determining whether the officers’ force was reasonable, we must
determine “whether a reasonable officer would believe that this level of force is
8
necessary in the situation at hand.” Ferraro, 284 F.3d at 1197 (citation omitted).
Under Graham, courts should determine the “objective reasonableness” of a
seizure by balancing the “nature and quality of the intrusion” against the
“governmental interest at stake.” 490 U.S. at 396. In this case, the intrusion was
severe. Mercado was hit in the head by a projectile fired from the Sage Launcher,
causing serious brain injury. Although this weapon is classified as a “less lethal”
munition, Orlando police regulations recognize that it can be used as a deadly
weapon.
When determining the government’s interest, we must consider factors that
include “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. Furthermore, 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.
Because this situation does not involve a criminal arrest, our facts do not fit
neatly within the Graham framework. Furthermore, because Florida does not
recognize attempted suicide as a crime, Krischer v. McIver, 697 So. 2d 97, 100
(Fla. 1997), it is impossible for this court to measure the “severity of the crime at
issue.”
9
We must next consider the extent to which Mercado placed himself or others
in danger. See Kesinger v. Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004)
(granting qualified immunity to officer who used deadly force on a suicidal victim
who “posed an immediate threat of harm” to himself, the officer, and others). The
defendants claim that the use of force is justified because suicidal subjects
sometimes make erratic moves that can jeopardize the safety of the officers on the
scene. See Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003) (noting that police
were justified in using “less lethal” bean-bag rounds on the plaintiff who
threatened to blow up his home by igniting propane and kerosene tanks outside his
home).
However, viewing the facts in the light most favorable to Mercado, we can
find no indication that he made any threatening moves toward the police. See
Deorle v. Rutherford, 272 F.3d 1272, 1284-85 (9th Cir. 1991) (denying officers
qualified immunity after deploying a projectile “bean bag” and taking out the eye
of a subject who was relatively cooperative and not a threat to the officers or
others). Even though he posed no threat to the police, he was a threat to himself,
and Florida law recognizes a “compelling interest in preventing suicide.” Krischer,
697 So. 2d at 103.
Furthermore, Mercado was not actively resisting arrest, and there is no
10
evidence that he struggled with the police. See Fernandez v. Cooper City, 207 F.
Supp. 2d 1371, 1377 (S.D. Fla. 2002) (holding that officers were afforded qualified
immunity for using force to subdue an emotionally unstable person who was
actively resisting arrest). Arguably, Mercado did not have time to obey Padilla’s
order to drop the knife because Padilla discharged the Sage Laucher within seconds
of making this request.
All of the factors articulated in Graham weigh in favor of Mercado. Because
he was not committing a crime, resisting arrest, or posing an immediate threat to
the officers at the time he was shot in the head, if Padilla aimed for Mercado’s
head, he used excessive force when apprehending Mercado. At this point, we must
assume that Padilla was aiming for Mercado’s head based on the evidence that
Padilla was trained to use the Sage Launcher, that the weapon accurately hit targets
from distances up to five yards, and that Mercado suffered injuries to his head.
Padilla was aware that the Sage Launcher was a lethal force if he shot at a subject
from close range. The officers were also aware that alternative actions, such as
utilizing a crisis negotiation team, were available means of resolving the situation.
This is especially true in light of the fact that Mercado had not made any
threatening moves toward himself or the officers.
Thus, in the light most favorable to Mercado, Padilla violated his Fourth
11
Amendment rights when he intentionally aimed at and shot Mercado in the head
with the Sage Launcher. See Thornton v. City of Macon, 132 F.3d 1395, 1400
(11th Cir. 1998) (denying qualified immunity for police officers when the suspect
did not commit a serious crime, pose a threat to the officers or others, or actively
resist arrest).
We further conclude, however, that Officer Rouse did not violate Mercado’s
Fourth Amendment rights. Although Officer Rouse did not fire the Sage Launcher,
Mercado contends that she should be held responsible under a theory of
supervisory liability.
[S]upervisory 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. The
necessary 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.
Alternatively the causal connection may be established when a
supervisor’s “custom or policy . . . result[s] in deliberate indifference
to constitutional rights” or when 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. The standard by which a supervisor is held liable in [his]
individual capacity for the actions of a subordinate is extremely
rigorous.
Cottone v. Jenne, 326 F. 3d 1352, 1360-61 (11th Cir. 2003) (citations and internal
quotation marks omitted).
12
Officer Rouse was in another room during the incident, and did not see
Padilla aim or fire the gun. She did not tell Padilla to fire the Sage Launcher at
Mercado’s head. Given that Padilla was trained in the proper use of the launcher,
that the Department’s guidelines prohibited firing the launcher at a suspect’s head
or neck except in deadly force situations, and that (as explained below) there is no
evidence that Padilla has used similarly excessive force in the past–all of which are
undisputed facts in the record–Rouse could not reasonably have anticipated that
Padilla was likely to shoot Mercado in the head either intentionally or
unintentionally. Even under the “failure to stop” standard for supervisory liability,
Rouse cannot be held liable.
2. Whether Padilla Violated Clearly Established Law.
Even though Padilla violated Mercado’s constitutional rights, he could still
be afforded qualified immunity provided that Mercado’s rights were not clearly
established at the time of the incident. Mercado can demonstrate that his right was
clearly established in a number of ways. First, he can show that a materially
similar case has already been decided, giving notice to the police. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). He could
also show that a broader, clearly established principle should control the novel
facts in this situation. Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L.
13
Ed. 2d 666 (2002). Finally, he could show that this case fits within the exception
of conduct which so obviously violates that constitution that prior case law is
unnecessary. Ferraro, 284 F.3d at 1199. To make this showing, Mercado must
point to law as interpreted by the Supreme Court, the Eleventh Circuit, or the
Supreme Court of Florida. See Willingham v. Loughnan, 321 F.3d 1299, 1304
(11th Cir. 2003).
Any case law that is “materially similar” to the facts in the case at hand must
pre-date the officer’s alleged improper conduct and “truly compel the conclusion
that the plaintiff had a right under federal law.” Ensley v. Soper, 142 F.3d 1402,
1406 (11th Cir. 1998) (internal quotation and citation omitted). Mercado,
however, can point to no controlling case law from the Supreme Court or this
Circuit dealing with the Sage Launcher. Although there are some cases dealing
with “less lethal” weapons, such as pepper spray, none of them is “materially
similar” to the facts in this case or “truly compels” the conclusion that Mercado
had a right established under federal law. See, e.g., Vinyard v. Wilson, 311 F.3d
1340, 1349 (11th Cir. 2002) (denying qualified immunity to an officer who
sprayed pepper in the eyes of an arrestee who was already handcuffed).5
5
The case of Wood v. City of Lakeland, 203 F.3d 1288 (11th Cir. 2000), contains the
clearest factual similarities to the case at bar. In Wood, the plaintiff’s family called the police to
subdue a suicidal subject. Id. at 1290. When the officers entered the residence, they observed
him sitting on a dresser, with his blood-covered arms holding an object to his neck. Id. After
repeatedly refusing to drop his weapon, he slid off the dresser, prompting an officer to shoot
14
If there is no case law directly on point, “[g]eneral statements of the law
contained within the Constitution, statute, or caselaw may sometimes provide ‘fair
warning’ of unlawful conduct.” Willingham, 321 F.3d at 1301. These principles
may give notice to officers, provided that the decisions clearly apply to the
situation at hand. The “reasoning, though not the holding” of prior cases can also
send “the same message to reasonable officers” in novel factual situations. Hope,
536 U.S. at 743.
The general principle of law must be specific enough to give the officers
notice of the clearly established right. Indeed, the principle that officers may not
use excessive force to apprehend a suspect is too broad a concept to give officers
notice of unacceptable conduct. See Jones v. City of Dothan, 121 F.3d 1456, 1460
(11th Cir. 1997) (noting that although the unconstitutionality of using excessive
force is an established principle, the concept is far too broad).
Mercado, however, relies on the principle that deadly force cannot be
employed in a situation that requires less-than-lethal force. See Tennessee v.
Garner, 471 U.S. at 11-12 (holding that a police officer cannot “seize an unarmed
him. The officers were entitled to qualified immunity because they “made a reasonable split-
second judgment call, in light of [his] volatile, emotional, and aggressive state, to use deadly
force in order to prevent imminent death or great bodily harm to himself or another.” Id. at
1293. Wood has since been called into question by Holloman because the Wood court was too
restrictive in its analysis. Because there is no way to discern how the Wood court would have
decided that case under the correct legal analysis, its relevance is marginal.
15
nondangerous suspect by shooting him dead”). Because the Fourth Amendment
protects citizens from “unreasonable” seizures, the use of deadly force must be
reasonable under the circumstances. Vaughan v. Cox, 343 F.3d 1323, 1329 (11th
Cir. 2003). Using deadly force in a situation that clearly would not justify its use is
unreasonable under the Fourth Amendment.
Under Florida law, “deadly force” means any “force that is likely to cause
death or great bodily harm,” but does not include “the discharge of a firearm by a
law enforcement officer or correctional officer during and within the scope of his
or her official duties which is loaded with a ‘less lethal munition.’” Fla. Stat. §
776.06. “Less-lethal munition” is, in turn, defined as “a projectile that is designed
to stun, temporarily incapacitate, or cause temporary discomfort to a person
without penetrating the person’s body.” Id. According to Orlando policies, the
Sage Launcher is defined as a “less lethal” munition; however, they also recognize
that some uses of the weapon should only be employed in deadly force situations.
Shooting a suspect in the head is specifically forbidden unless the situation
requires deadly force.
As noted above, for the purposes of summary judgment, we must assume
that Padilla intended to shoot Mercado in the head based on Mercado’s injuries and
the proven accuracy of Padilla’s weapon. Because shooting a subject in the head
16
with a Sage Launcher employs force “likely to cause death or great bodily harm,”
this action can be considered “deadly force.” Both Padilla and Rouse were aware
that police policy forbade them from utilizing this magnitude of force under the
facts at bar. Because this situation was clearly not a deadly force situation, and
because the officers utilized deadly force to subdue Mercado, they violated the
clearly established principle that deadly force cannot be used in non-deadly
situations.
Furthermore, this is one of the cases that lie “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 case law.” Ferraro, 284
F.3d at1199 (internal quotation and citation omitted). The facts in this case are
also “so far beyond the hazy border between excessive and acceptable force that
[the official] had to know he was violating the Constitution even without caselaw
on point.” Willingham, 321 F.3d at 1303.
We have repeatedly held that police officers cannot use force that is “wholly
unnecessary to any legitimate law enforcement purpose.” Ferraro, 284 F.3d at
1199 (holding that slamming a handcuffed arrestee’s head against a vehicle
violated the Fourth Amendment); see Slicker v. Jackson, 215 F.3d 1225, 1227
(11th Cir. 2002) (denying qualified immunity for an officer who kicked an arrestee
17
already in handcuffs); Priester v. City of Riviera Beach, 208 F.3d 919, 926-27
(11th Cir. 2000) (denying qualified immunity to officers who allowed a police dog
to attack an arrestee who was already on the ground).
Officer Padilla should not have needed case law to know that by
intentionally shooting Mercado in the head, he was violating Mercado’s Fourth
Amendment rights. When the officers entered the apartment, they found Mercado
crying on the floor of his kitchen with a loose cord around his neck and a kitchen
knife placed up to, but not poking into, his chest. From a distance of about six feet
away, Padilla twice shouted for Mercado to drop his knife, and then discharged the
Sage Launcher, hitting Mercado in the head from short range. Assuming that
Padilla was aiming at Mercado’s head intentionally, his use of force was clearly
excessive.
There is sufficient evidence in the record to support a finding that Padilla
intentionally aimed for Mercado’s head. First Padilla had been trained in the use
of the Sage Launcher. Second, the defendants’ witness testified that the Sage
Launcher fired accurately from a distance of up to five yards. Third, Padilla fired
from a distance of six feet. Finally, the only shot that made contact with Mercado
hit him in the head. Since such circumstantial evidence could lead a reasonable
jury to find that Padilla intended to hit Mercado in the head, we REVERSE the
18
district court’s ruling as to Padilla and find that he should not be afforded the
protection of qualified immunity.
B. Mercado’s Fourth Amendment Claim Against Orlando
Under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978), municipalities are subject to § 1983 liability “when
execution of a government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may be fairly said to represent official policy, inflicts
the injury[.]” Id. at 694. Furthermore, municipalities cannot be held liable for
employees under respondeat superior. Samples v. City of Atlanta, 846 F.2d 1328,
1333 (11th Cir. 1988).
For Mercado’s Monell claim to survive summary judgment, he must bring
forth some evidence of a pattern of improper training to sustain his claim, and he
must show that Orlando was aware of the deficiencies in the program. See City of
Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)
(noting that constitutional policies can become unconstitutionally applied through a
repeated failure to train); see also Riley v. Newton, 94 F.3d 632, 638 (11th Cir.
1996). Furthermore, Mercado must show that this training or failure to train
amounted to “deliberate indifference” on the part of the Orlando. See City of
Canton, 489 U.S. at 389; see also Gold v. City of Miami, 151 F.3d 1346, 1350
19
(11th Cir. 1998) (noting that there are only “limited circumstances in which an
allegation of a failure to train or supervise can be the basis for liability under §
1983”) (internal quotation marks omitted).
Both of Mercado’s arguments regarding his Monell claim challenge the
district court’s rulings on the defendants’ motion in limine to exclude evidence
from trial. Mercado first claims that the court erred in determining that Officer
Burgos’s statement, which would have been introduced through Mercado’s sister,
that officers are trained to “shoot people in the head,” is inadmissible hearsay and
more prejudicial than probative. The district court, however, did not abuse its
discretion when it determined that the statement was hearsay.
Rule 801(d)(2)(D) states that a non-hearsay party admission includes a
“statement by the party’s agent or servant concerning a matter within the scope of
the agency or employment, made during the existence of the relationship.”
Although the statement may meet all of these requirements, the Rule further
provides that “the contents of the statement shall be considered but are not alone
sufficient to establish the agency or employment relationship and scope thereof
under subdivision (D).” The only evidence Mercado has produced relating to
Burgos’s statement is the uncorroborated statement itself. Because Mercado has
not brought forth any evidence to corroborate this statement, the district court did
20
not abuse its discretion in finding that the statement is inadmissible hearsay.
Mercado also argues that the district court erred in precluding him from
introducing into evidence other instances of Orlando officers using excessive force.
In Gold, we determined that a plaintiff could not establish a Monell claim when he
could not point to any other incidents involving similar facts. 151 F.3d at 1351.
Mercado, too, cannot meet this burden. During discovery, he was given a list of all
cases involving excessive force, but he cannot show that any of them involved
factual situations that are substantially similar to the case at hand. For this reason,
the district court did not abuse its discretion, and the dismissal of Mercado’s
Monell claim against Orlando should be AFFIRMED.
C. Mercado’s Negligence Claims Against Orlando
Finally, Mercado alleged that Orlando was negligent in training and
supervising its employees, and Orlando defends on the grounds of sovereign
immunity. Although Florida Statute § 768.28(1) waives sovereign immunity for
acts which would create liability for a private person, such waiver extends only to
the government’s “operational,” not “discretionary” acts. Lewis v. City of St.
Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001).6 Even though the officers had a
6
This court must first determine if the claims that Mercado is alleging against Orlando
would be actionable against a private person. The torts of negligent supervision and negligent
training are recognized in Florida, and no party contends otherwise.
21
duty of care with respect to Mercado because he was in custody, Moore v. State,
861 So. 2d 1251, 1253 (Fla. Dist. Ct. App. 2003), he must show that the training
and supervision of the defendant officers constituted an operational duty before it
can seek to recover any damages.
1. Negligent Training
For Mercado to state a claim for negligent training, he must show that
Orlando was negligent in the implementation or operation of the training program.
He cannot merely challenge the content of the program. The determination of the
content of a training program is a discretionary function for the city which is
afforded sovereign immunity. Lewis, 260 F.3d at 1266. Because Mercado only
challenges the content of the program, not the way in which the program was
implemented, Orlando is entitled to sovereign immunity with respect to this claim.
2. Negligent Supervision
The Florida Supreme Court recognized the tort of negligent retention as
early as 1954, stating that the employer cannot knowingly keep “a dangerous
servant on the premises which defendant knew or should have known was
dangerous and incompetent[.]” Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954).
To state a claim of negligent retention of employees, Mercado must show that
Orlando was put on notice of the “harmful propensities of the employees.” Willis
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v. Dade County Sch. Bd., 411 So. 2d 245, 246 n.1 (Fla. Dist. Ct. App. 1982).
Because Mercado has not brought forth any evidence that Orlando had notice that
either of the officers had “harmful propensities” or was otherwise unfit to serve as
a police officer, he cannot state a claim for negligent supervision. For these
reasons, we AFFIRM the district court’s rulings as to Mercado’s claims for both
negligent training and negligent supervision.
AFFIRMED in part and REVERSED and REMANDED in part.
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