Joseph Todd Eric Brown v. City of Clewiston and Luis Perez

HATCHETT, Circuit Judge,

dissenting:

The majority holds that Brown has failed to demonstrate the existence of a material fact dispute regarding which policy the city of Clewiston followed at the time of the shooting in 1979. Because, in my view, the majority has affirmed the district court’s resolution of factual disputes, I dissent.

As noted in the district court’s opinion, the plaintiff and the city of Clewiston have stipulated to the following facts:

On June 18, 1979, Officer LUIS PEREZ was a police officer employed by the defendant CITY. PEREZ was within the vicinity of Concordia Avenue in the City of Clewiston and was observing an apartment located at 834 Concordia Avenue. PEREZ was acting within the course and scope of his employment at that time and during the course of subsequent events.
As PEREZ watched, plaintiff BROWN went to the back of the apartment at 834 Concordia Avenue, broke the glass in a *1544window there, and crawled into the apartment. BROWN entered the apartment with the intent to steal a stereo and/or other property. Thereafter, BROWN exited the apartment and returned to a car which was parked nearby. Three (3) of his friends awaited in there.
Officer PEREZ approached the parked vehicle, announced that he was a police officer and told BROWN that he was under arrest. At the time, PEREZ knew who the plaintiff was, knew that he was a juvenile and knew his address. BROWN knew PEREZ was a police officer and that he (PEREZ) was attempting to place the plaintiff under arrest.
After PEREZ told the plaintiff that he was under arrest, BROWN attempted to escape by fleeing. Officer PEREZ discharged his firearm, hitting the plaintiff in the leg, in order to prevent his (BROWN’S) escape....
The following facts, although not stipulated to, are uncontroverted: BROWN committed a felony, to wit: Burglary. BROWN was unarmed at the time he was shot and was not a threat to PEREZ or any other person. Officer PEREZ was not in fear of death or bodily harm at the time he shot BROWN.

Brown v. City of Clewiston, 644 F.Supp. 1407, 1409-10 (S.D.Fla.1986).

This appeal comes to us in much the same posture as the Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Garner, the father of a 15-year-old burglary suspect who was slain by a police officer, filed suit against the officer, the Memphis Police Department, the city of Memphis, and other public officials, alleging that the shooting violated the fourth, fifth, sixth, eighth, and fourteenth amendments to the United States Constitution. See Garner, 471 U.S. at 5, 105 S.Ct. at 1698, 85 L.Ed.2d at 67. Because the facts of Garner are so similar to those in this case, a brief review of Garner is warranted.

On October 3, 1974, Memphis police officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. As Officer Hymon approached the house, he observed the suspect, Eugene Garner, ran away from the house and across the backyard. With the aid of a flashlight, Officer Hymon was able to see Garner’s hands and face, and though not certain, “was ‘reasonably sure’ and ‘figured’ that Garner was unarmed.” Garner, 471 U.S. at 3, 105 S.Ct. at 1697, 85 L.Ed.2d at 5. After Gamer refused to obey Officer Hymon’s command that he halt, Hymon fired his revolver, fatally wounding Garner. When asked at trial why he fired his revolver, Hymon’s only justification was that “there [wa]s no way that I could have caught him.” Garner, 471 U.S. at 4 n. 3, 105 S.Ct. at 1697 n. 3, 85 L.Ed.2d at 5 n. 3.1

In using deadly force to prevent Garner’s escape, Officer Hymon was acting pursuant to the authority of a Tennessee statute which provided that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” Tenn.Code Ann. § 40-7-108 (1982). Although the police department’s policy was more restrictive than the state statute, it also authorized the use of deadly force in cases of burglary. Garner, 471 U.S. at 4-5, 105 S.Ct. at 1698, 85 L.Ed.2d at 5.

Following a bench trial, the district court entered judgment for all defendants, but was subsequently reversed by the court of appeals. Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983). On certiorari, the Supreme Court, agreeing with the Sixth Circuit that the Tennessee statute was unconstitutional as applied, held that deadly force may not be employed to prevent the escape of a suspected felon unless the police officer has probable cause *1545to believe that the suspect poses a significant threat of serious harm or death to the officer or others. Garner, 471 U.S. at 3, 105 S.Ct. at 1697, 85 L.Ed.2d at 4.

In holding that the Tennessee statute was unconstitutional insofar as it authorized the use of deadly forced against unarmed, nondangerous suspects, the Court underscored the overwhelming trend among the states to abandon the common law rule, which allowed the use of whatever force necessary to prevent the escape of a fleeing felon. Gamer, 471 U.S. at 25-26, 105 S.Ct. at 1708-09, 85 L.Ed.2d at 18-19. Among those statutes identified by the Court as an embodiment of the common law rule was section 776.05, Florida Statutes, which authorized a police officer to use “any force which he reasonably believes to be necessary to defend himself or another ... or when necessarily committed in arresting felons fleeing from justice.” Fla.Stat. § 776.05 (emphasis added).2

In contrast to section 776.05, the city of Clewiston’s police manual was much more restrictive, providing that deadly force could be used by a police officer only:

(1) to defend himself from serious injury; (2) to defend others from death or serious injury when other means have failed; and (3) to apprehend a fleeing felon when all other means have failed and where the officer reasonably believes that the felon has committed a violent crime toward a person or a crime against property demonstrating a wanton and reckless disregard for human life.

Brown, 644 F.Supp. at 1414.

For purposes of determining whether Brown has stated a claim against the city, I agree with the majority that Brown must allege and submit proof that the city of Clewiston promulgated an unconstitutional policy or custom, which caused the alleged constitutional deprivation. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

In refuting Brown’s claim that a material fact dispute exists regarding which policy the city of Clewiston applied at the time of his shooting, the majority concludes that the official policy of the city was contained in Chief Wilbur Miller’s police manual. This conclusion is reached because each police officer was required to sign a copy of the manual and because Miller verbally admonished his officers, “Don’t take your *1546gun out unless you need it; don’t fire it unless it’s absolutely necessary.”

The majority reasons that Brown attempts to create a material fact dispute regarding the city’s official policy by “ex-tractpng] selective statements from the depositions of Chief Miller [and] Officer Perez_” Ante at 1539. To the extent that Brown’s argument is predicated on selective portions of the deposition testimony, the majority’s analysis is similarly flawed. For instance, conspicuously absent from the majority’s opinion is Chief Miller’s testimony that he instructed his officers to follow state law as well as the department’s manual:

Q. [Counsel for Defendants] Did you keep a tight rein on your officers as far as discharging firearms?
A. [Chief Miller] Well, we had the policies, and I tell them don’t be playing cowboys out there, you know. Don’t take your gun out unless you need it; don’t fire it unless it’s absolutely necessary.
Q. And did you tell them to follow the policies in the manual?
A. Follow the policies of the manual AND the STATE STATUTES. [Emphasis added.]

The problem with this response is that the policies embodied in the department’s manual and Florida’s fleeing felon statute are not coterminous. For example, the police department’s manual provides that an officer “shall not discharge his firearm to render an arrest or to stop the flight of a person who has committed a misdemeanor or a felony against property." Thus, it is indisputable that the department’s manual did not authorize Officer Perez to fire his weapon at Brown because as the offense which Brown committed, burglary, is a felony against property.

In contrast, Florida’s fleeing felon statute does not differentiate between felonies against property and felonies against the person. Therefore, given Chief Miller’s testimony that he admonished his officers “to follow the policies of the manual and the state statutes," one could certainly argue that part of the department’s “policy” was that police officers were authorized to use deadly force when attempting to apprehend suspected felons who, as in this case, had committed crimes against property.

This interpretation seems even more plausible given Chief Miller’s testimony that he wanted his officers “to conform with their manual but above all else to stay within the state statute.” The majority reasons that this testimony raises no factual issue regarding the city’s official policy on the use of deadly force because Chief Miller's desire that his officers not violate state law “is not inconsistent with his desire that they adhere to the more restrictive city policy.” Ante at 1539.

As mentioned previously, however, Florida’s fleeing felon statute is much broader regarding the use of deadly force than the department’s manual. Chief Miller’s instructions that his officers “above all else stay within the state statute” while at the same time “conform with their manual” is an inherent contradiction. As this case demonstrates, although Officer Perez was authorized to shoot Brown under Florida’s fleeing felon statute, his conduct necessarily contravened the rules in the department’s police manual. Consequently, I am at a loss as to how the majority surmises that Chief Miller’s desire that his officers not violate state law “is not inconsistent with his desire that they adhere to the more restrictive city policy.”

The deposition testimony of Officer Perez likewise raises a genuine issue of material fact as to whether the city’s official policy regarding the use of deadly force was embodied in Florida’s fleeing felon statute or the department’s police manual. For instance, Officer Perez testified as follows during his deposition:

Q. [Counsel for Plaintiff] Had you ever received any training in the use of deadly force in making an arrest in terms of any state policies or state laws or any county policies — or not county — any city like Clewiston, policies?
A. [Officer Perez] CITY OF CLEWI-STON, NO, SIR.
Q. To your knowledge was there any set standard or any lists of standards by *1547the Clewiston Police Department pertaining to when it used deadly force in making an arrest?
A. Yes, sir.
Q. And were they in any way different from those policies that were used by the state or promulgated from the state of law enforcement?
A. NO, SIR, I DON’T THINK SO.
Q. In your training courses in Fort Myers, did you receive any training when you used a [sic] deadly force in making an arrest?
A. Verbally they would explain to us, yes, sir.
Q. When you were using deadly force, I assume, in the instance of Todd Brown, what was your reason or justification for using deadly force?
A. Fleeing felon.
Q. And was it your understanding that use of deadly force was permitted by the state law and City of Clewiston Police Department’s instructions or practice, for instance, in fleeing felons?
MR. PETERSON: Objection to the form.
THE WITNESS: Back there then, that’s a State Statute, fleeing felon.
BY MR. NUGENT:
Q. I assume that the State Statute was followed by the Clewiston Police Department?
A. YES, SIR. [Emphasis added.]

Obviously troubled by the equivocal nature of his responses, the majority discounts Officer Perez’s testimony by reasoning that he “did not say that he was instructed to disregard the Chief’s manual and to follow some other ‘policy.’ ” Ante at 1540 n. 9. “In any event,” the majority reasons, “Chief Miller, and not Officer Perez, was responsible for implementing the city’s policy on the use of deadly force.” Ante at 1540 n. 9. The majority’s reasoning is unpersuasive in at least two respects.

First, it does not save the day for the majority that Officer Perez did not testify that he was instructed to disregard the department’s manual and follow some other policy. In Officer Perez’s view, the standards for using deadly force contained in the department’s manual were identical to the standards contained in Florida’s fleeing felon statute.

Second, the majority’s rationale that Officer Perez’s testimony is irrelevant because Chief Miller was responsible for implementing the city’s policy on the use of deadly force, overlooks the fact that the term “policy,” as it pertains to municipal liability, is not only a function of rulemak-ing, but also a function of implementation of those rules. Surely, the city could not escape liability by merely promulgating rules which it never intended to enforce, or of which its employees were never made aware. Thus, while I agree that Officer Perez’s testimony is not dispositive, I disagree with the majority’s rejection of his testimony as bearing no relevance on the factual dispute regarding the city’s policy on the use of deadly force.

Brown has demonstrated the existence of a material factual dispute regarding the city’s official policy on the use of deadly force. Factual disputes of this nature are precisely the types of disputes which district courts should refrain from resolving on motions for summary judgment.

. During his deposition testimony, Officer Perez offered a similar justification when asked why he fired his revolver at Brown. Officer Perez testified that as he was pursuing the unarmed Brown, "I was pacing up to him, trying to catch up to him, but at my age, Todd Brown was only about sixteen years old then and I have seen him run. He can run." See Deposition of Officer Luis Perez at 20.

. The full text of section 776.05 provides as follows:

Law enforcement officers; use of force in making an arrest. — A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.

As indicated in the majority’s opinion, the Florida Legislature has recently amended section 776.05 to more narrowly circumscribe the conditions under which a law enforcement officer may use deadly force to arrest fleeing felons. The amended statute, effective October 1, 1987, provides as follows:

776.05 Law enforcement officers; use of force in making an arrest
A law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force:
(1) Which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest;
(2) When necessarily committed in retaking felons who have escaped; or
(3) When necessarily committed in arresting felons fleeing from justice and:
(a) The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or
(b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such light, and when feasible, some warning had been given.

Both parties apparently agree that the amendment to section 776.05 has no bearing on the disposition of this appeal.