[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 26, 2009
No. 08-10176
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00813-CV-T-30-TBM
PEARLIE MCCULLOUGH,
as grandmother and personal representative of the
estate of her grandson, Marquell McCullough, deceased,
Plaintiff-Appellee,
versus
DAVID ANTOLINI,
Deputy Sheriff, in his individual capacity,
NELSON DELEON,
Deputy Sheriff, in his individual capacity,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 26, 2009)
Before HULL, MARCUS and KRAVITCH, Circuit Judges.
MARCUS, Circuit Judge:
In this civil rights case, Pinellas County sheriff’s deputies David Antolini
and Nelson DeLeon appeal from the district court’s denial of their motion for
summary judgment on the basis of qualified immunity. The sheriff’s deputies used
deadly force against Marquell McCullough in a rapidly unfolding scenario early in
the morning hours of May 2, 2004. The facts, taken in the light most favorable to
McCullough, established that he disobeyed a police command and refused to pull
his truck over, led the police on a high speed chase, and then after finally pulling
over, refused to show his hands or respond to the deputy sheriff’s orders and drove
his truck in the direction of a sheriff’s deputy standing nearby.
After thorough review, we conclude that the sheriff’s deputies are entitled to
qualified immunity; their actions did not constitute excessive force under the
Fourth Amendment. Accordingly, we reverse the denial of summary judgment
and remand for further proceedings consistent with this opinion.
I.
In conducting de novo review of the district court’s resolution of a summary
judgment motion based on qualified immunity, we resolve all issues of material
fact in favor of the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.
2002). As we noted in Lee,
2
we approach the facts from the plaintiff's perspective
because “[t]he issues appealed here concern not which
facts the parties might be able to prove, but, rather, whether
or not certain given facts showed a violation of clearly
established law.” Sheth v. Webster, 145 F.3d 1231, 1236
(11th Cir.1998). As this Court has repeatedly stressed, the
“facts, as accepted at the summary judgment stage of the
proceedings, may not be the actual facts of the case.
Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3
(11th Cir. 2000). Nevertheless, for summary judgment
purposes, our analysis must begin with a description of the
facts in the light most favorable to the plaintiff. See Skrtich
v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).
284 F.3d at 1190. Because the plaintiff in this action is deceased and there is no
complete witness testimony, we necessarily rely on the facts presented by the
defendants, but where there is a discrepancy between the statements of the
defendants, we have resolved the dispute by using only those statements most
favorable to the plaintiff. See generally Skrtich, 280 F.3d at 1299 (“On review of
a district court's denial of summary judgment, the Court considers the pleadings,
depositions, affidavits, answers to interrogatories and admissions together with the
affidavits if any... in the light most favorable to the non-moving party.”).
This tragic story begins at approximately 1:00 a.m. on May 2, 2004, when
Pinellas County sheriff’s deputy John Syers, Jr. received a report about individuals
dealing narcotics at the La Quinta Inn located on 34th Street North in Pinellas
County. Syers pulled his unmarked police car into the La Quinta Inn parking lot
3
and observed what he believed to be a drug transaction between two individuals.
He pursued and stopped one of the individuals, Donald Mohyla, and then returned
to the parking lot. When he re-entered the parking lot, he saw the man whom he
believed to be the other individual involved in the drug transaction, Marquell
McCullough. As Syers approached McCullough, McCullough got into his white
pickup truck and drove out of the parking lot. Syers observed that the tint on the
truck’s windows was too dark, in violation of Florida law.
He radioed the vehicle’s tag number as well as his suspicion of drug activity
to deputies Antolini and DeLeon and told them they had probable cause to conduct
a traffic stop for excessive window tint. Antolini followed the truck, and pulled
his police car behind it as it stopped at a traffic light at the intersection of 38th
Ave. North and 34th St. North. DeLeon pulled his police cruiser behind the police
cruiser driven by Antolini and the truck driven by McCullough. When the light
turned green, McCullough accelerated his truck heading south. Both Antolini and
DeLeon then activated their emergency lights and sirens and followed the truck.
The truck did not pull over, instead continuing to accelerate to approximately sixty
miles per hour. After the truck went through the intersection of 22nd Ave. North,
it pulled into a shopping center parking lot. Antolini followed the truck, and
DeLeon in turn followed but was further behind at this point.
4
The ground was wet from a previous rain, and shortly after McCullough
drove into the parking lot, his truck fishtailed and spun around up to 270 degrees.
According to testimony from a taxi cab driver driving near the scene, Thomas
Bowen,1 “it looked like [McCullough] tried to make a U-Turn and leave the
parking lot.” According to deputy Antolini, McCullough’s truck then came to a
stop at approximately a forty-five degree angle to, and a few feet away from
Antolini’s police car which then stopped. Antolini exited his vehicle, drew his
firearm and walked to the front of his police car. Antolini pointed his firearm at
the driver of the truck and yelled at McCullough, directing him to show his hands.
In his affidavit in support of summary judgment, Antolini avers “I was able to
make eye contact with the driver of the truck.” The driver did not show his hands
or respond to the officer’s command.
While this was happening, deputy DeLeon drove into the parking lot.
According to his statement to investigators, “deputy DeLeon was coming in a little
fast as the parking lot was wet from a recent rain.” According to witness Bowen,
it looked like DeLeon (along with Antolini) were trying to box McCullough in.
DeLeon was passing the right side of Antolini’s car, applied his brakes, skidded
past the passenger side of Antolini’s car, and struck McCullough’s truck. The
1
Bowen was heading northbound on 34th Street at the time. He later slowed down and
came to rest on the edge of the parking lot.
5
force of the collision jammed the driver’s side door of deputy DeLeon’s cruiser
shut, and left the cruiser and the truck inches apart.
DeLeon said that he yelled to Antolini that he was “stuck,” and Antolini
reported hearing DeLeon yell something. Notably, at this point, both Antolini and
DeLeon heard McCullough’s truck’s engine revving, and DeLeon thought he
heard its tires spinning. DeLeon drew his firearm and fired one shot through his
closed driver’s-side window at the truck’s windshield. Antolini then fired three
shots towards the truck’s windshield. Antolini was unable to determine whether
these shots struck McCullough.
At this point, the truck went into reverse, and spun its tires. Antolini said he
saw the truck back away from DeLeon’s cruiser and its front wheels swing in his
direction. He then fired another round at the truck’s windshield and jumped on the
hood of his cruiser in order to avoid being struck by the moving vehicle.
McCullough drove the truck towards deputy Antolini and it struck Antolini’s
police cruiser in the front passenger corner or front right bumper. The damage to
Antolini’s car was limited to some paint transfer from the white truck to the right
front bumper of Antolini’s cruiser, suggesting that the truck was moving slowly.
6
The truck then kept moving westward, continuing to “mov[e] out of the
boxed-in situation that the officers had him in”2 and away from Antolini and
DeLeon. According to DeLeon, the truck was then moving at a slow speed across
the parking lot toward the taxi cab now parked at the parking lot’s exit, and
Antolini and DeLeon were able to move alongside the truck and stay at least even
with the passenger column of the truck. As the truck rolled away, Antolini and
DeLeon followed the truck on foot, both along the passenger side, and each fired
more rounds at the passenger side of the vehicle. DeLeon said that he fired more
rounds because he heard gun shots and did not know who was firing them.
Antolini told investigators that he remembered telling DeLeon to “watch your
crossfire,” but said he was not sure where DeLeon was standing at the time.
The truck finally rolled to a stop when it entered a shallow ditch at the edge
of the parking lot, before the sidewalk. Antolini and DeLeon reloaded and
approached the front of the truck with weapons pointed at the passenger side.
Antolini called to report the incident, and McCullough was pronounced dead at
2
This observation comes from Bowen, who at that point purposefully stopped his cab at
the exit of the parking lot so that “if the truck was coming out, it would probably strike my
vehicle.” Bowen, a former police officer, stated that he did this to help the police.
7
the scene by arriving paramedics. The entire incident took place over a very short
period of time.3
According to the medical examiner’s report, McCullough died of multiple
gunshot wounds. Nine bullets struck McCullough in total, with a shot traveling
back to front and striking him in the head after ricocheting off the seatbelt being
the fatal shot. A Pinellas County Sheriff’s Office detective assigned to the case
further found that the deputies fired a total of fifteen shots at McCullough;
Antolini shot nine times and DeLeon six. The detective also determined that all of
the shells recovered at the scene were from the deputies’ guns and that
McCullough was unarmed.
On May 2, 2006, appellee Pearlie McCullough, on behalf of the estate of her
grandson Marquell Deontae McCullough, filed this two-count § 1983 civil rights
complaint against deputies Antolini and DeLeon, and the Pinellas County Sheriff’s
Office in the United States District Court for the Middle District of Florida. The
claim against Antolini and DeLeon in their individual capacities alleged among
3
Indeed, both parties agreed at oral argument that the incident, from the time of the initial
collision with DeLeon's cruiser until McCullough's truck rolled to its ultimate stop near the exit,
took place in approximately twenty seconds.
8
other things that the deputies seized McCullough with excessive (and deadly)
force in violation of the Fourth Amendment.4
On September 27, 2007, Antolini and DeLeon moved for summary
judgment on the ground of qualified immunity. Soon thereafter, the district court
denied the motion concluding that the officers were not entitled to qualified
immunity. This timely interlocutory appeal followed.
II.
The only issue before us is whether the sheriff’s deputies are entitled to
qualified immunity on the Fourth Amendment claim that they wrongfully used
deadly force. We review the district court's disposition of a summary judgment
motion based on qualified immunity de novo. Lee, 284 F.3d at 1190. Summary
judgment is appropriate if “the evidence before the court shows that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.
1995) (internal quotations omitted). We add that the mere existence of a factual
dispute does not preclude summary judgment for the defendants on the basis of
qualified immunity. McDaniel v. Woodard, 886 F.2d 311, 313 (11th Cir. 1989).
4
Count Two, which is not now before us, sued Sheriff Jim Coats in his official and
personal capacities, alleging that the deputies committed the tort of wrongful death under Florida
law.
9
In order to overcome a summary judgment motion on the basis of qualified
immunity, the facts in dispute must raise a genuine issue of fact material to the
determination of the underlying issue -- here whether police officers used
excessive force. See, e.g., Lee, 284 F.3d at 1190; Thornton v. City of Macon, 132
F.3d 1395, 1400 (11th Cir. 1998).
As we have often observed, “[q]ualified 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.” Lee, 284 F.3d at 1193-94 (internal
quotations omitted). The purpose of qualified immunity is to allow officials to
carry out discretionary duties without the chilling fear of personal liability or
harrassive litigation, Anderson v. Creighton, 483 U.S. 635, 638-39 (1987),
“protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Lee, 284 F.3d at 1194 (internal citation omitted). In
order to receive qualified immunity, an official must first establish that “he was
acting within the scope of his discretionary authority when the allegedly wrongful
acts occurred.” Id. (internal quotations omitted). If the official was acting within
the scope of his discretionary authority -- and it is undisputed that officers
Antolini and DeLeon were acting within their discretionary authority -- the burden
10
then shifts to the plaintiff to show that the grant of qualified immunity is
inappropriate. Id.
The Supreme Court recently reaffirmed the long-established standard for
qualified immunity in Pearson v. Callahan, 555 U.S. _, No. 07-751 (Jan. 21,
2009). “Qualified immunity balances two important interests, the need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officers from harassment, distraction, and liability when they perform
their duties reasonably.” See id., slip op. at 6. Under Pearson, we are obliged to
grant qualified immunity unless the plaintiff can demonstrate: first, that the facts
viewed in the light most favorable to the plaintiff establish a constitutional
violation by the officers, and, second, that it was clearly established at the time of
the incident that the actions of the defendant were unconstitutional. See id., slip
op. at 4-5, 10. This inquiry “must be undertaken in light of the specific context of
the case, not as a broad general proposition.” Lee, 284 F.3d at 1194 (internal
citation omitted). Moreover, under Pearson, the federal courts are no longer
required to conduct this qualified immunity analysis in the order articulated by
Saucier v. Katz, 533 U.S. 194 (2001); rather, we are “permitted to exercise [our]
sound discretion” in deciding which prong of this inquiry to address first. Slip op.
at 10.
11
In this case, we begin and end our analysis with whether the law
enforcement officers violated McCullough’s Fourth Amendment rights. We hold
that they did not.
The complaint alleges, among other things, that deputies Antolini and
DeLeon used excessive force in violation of the Fourth Amendment when they
shot McCullough in his vehicle. A claim of excessive force is “properly analyzed
under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v.
Connor, 490 U.S. 386, 388 (1989); Long v. Slaton, 508 F.3d 576, 580 (11th Cir.
2007). In determining the reasonableness of the force applied, we look at the fact
pattern from the perspective of a reasonable officer on the scene with knowledge
of the attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate. Scott v.
Harris, 550 U.S. 372, 127 S. Ct. 1769, 1778 (2007). “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.” Graham, 490 U.S. at
396. And, “[t]he calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving -- about the amount
of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
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This Court has explained the application of the constitutional
reasonableness test in practice. In Lee, we wrote:
The Fourth Amendment's freedom from unreasonable
searches and seizures encompasses the plain right to be
free from the use of excessive force in the course of an
arrest. In order to determine whether the amount of force
used by a police officer was proper, a court must ask
“whether a reasonable officer would believe that this level
of force is necessary in the situation at hand.” The
Supreme Court has held that “[d]etermining whether the
force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing
of ‘the nature and quality of the intrusion on the
individual's Fourth Amendment interests' against the
countervailing governmental interests at stake.”
Moreover, “Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.”
Lee, 284 F.3d at 1197 (internal citations omitted). In Lee we reviewed an
excessive force claim against an officer and we stated that to determine whether a
constitutional violation occurred, we measure the level of force used against 1) the
severity of the crime, 2) the immediacy of the threat posed by the suspect, and 3)
whether the suspect sought to evade or resist arrest. Id. at 1197-98 (citing
Graham, 490 U.S. at 397).
In Vaughan v. Cox, 343 F.3d 1323 (11th. Cir. 2003), we reviewed another
excessive force claim and we recited some of the conditions attendant to the
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lawful use of deadly force. We observed that a police officer may use deadly
force where the officer,
(1) “has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to
others” or “that he has committed a crime involving the
infliction or threatened infliction of serious physical harm”;
(2) reasonably believes that the use of deadly force was
necessary to prevent escape; and (3) has given some
warning about the possible use of deadly force, if feasible.
Vaughan, 343 F.3d at 1329-30 (quoting Tennessee v. Garner, 471 U.S. 1, 11-12
(1985)).
The constitutional test for excessive force is necessarily fact specific.
“Because ‘the test of reasonableness under the Fourth Amendment is not capable
of precise definition or mechanical application,’ we must ‘slosh our way through
the fact bound morass of reasonableness.’” Long, 508 F.3d at 580. We have had
occasion to review many excessive force claims against officers in the context of
qualified immunity determinations where the decedent was driving an automobile
at the time deadly force was used. In some of the cases, we have found that the
officers were not entitled to qualified immunity. In others, we have awarded
qualified immunity. We have, however, consistently upheld an officer’s use of
force and granted qualified immunity in cases where the decedent used or
14
threatened to use his car as a weapon to endanger officers or civilians immediately
preceding the officer’s use of deadly force.
In Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002), for example, a
panel of this Court upheld the officer’s use of deadly force against a fleeing
suspect who, a few seconds before the shooting, had been driving hazardously and
had swerved his car at police officers. Id. at 1277, 1282. We found the use of
force constitutional because “[the decedent] would have appeared to reasonable
police officers to have been gravely dangerous” at the time of the shooting, based
on his aggressive and reckless driving as well as his failure to heed police
warning. Id. at 1292.
In Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005), a panel of this
Court, relying on similar reasoning, granted qualified immunity to an officer who
used deadly force when a suspect slowly -- at one or two miles per hour -- drove a
vehicle forward toward the officer who was standing between the suspect’s
vehicle and a parked car. We said that the use of deadly force was reasonable
because “[e]ven if in hindsight the facts show that Arrugueta perhaps could have
escaped unharmed . . . a reasonable officer could have perceived that [decedent]
was using the Escort as a deadly weapon . . . [and thus] Arrugueta had probable
cause to believe that [he] posed a threat of serious physical harm.” Id. at 1256.
15
Finally, in Long v. Slaton, 508 F.3d 576 (2007), a panel of this Court found
no excessive force violation and granted qualified immunity to officers who used
deadly force against a mentally unstable person who had avoided police capture,
stole a marked police cruiser, and was attempting to drive the police cruiser
toward the road. Id. at 578-79. We held that “[a]lthough at the point of the
shooting Long had not yet used the police cruiser as a deadly weapon, Long’s
unstable frame of mind, energetic evasion of the deputy’s physical control, Long’s
criminal act of stealing a police cruiser, and Long’s starting to drive – even after
being warned of deadly force – to a public road gave the deputy reason to believe
Long was dangerous.” Id. at 581-82 (internal citation omitted).
The sad case now before us is similar in key respects to these cases. This
case unfolded very rapidly and under less than ideal conditions. The facts, viewed
in the light most favorable to plaintiff, plainly show at least this much:
1. Deputy Syers transmitted information to deputies
Antolini and DeLeon about McCullough’s suspected
participation in a drug transaction;
2. McCullough failed to pull his truck over when
deputies Antolini and DeLeon turned on their
emergency lights and sirens at approximately 1:30
a.m;
3. McCullough instead accelerated to approximately
sixty miles per hour not long after it had rained and
cut across two lanes of traffic;
16
4. McCullough then abruptly pulled his truck into a
parking lot, and his high speed and the wet
conditions caused his vehicle to fishtail so that he
ended up only a few feet away from Antolini’s
police car;
5. Antolini pointed his firearm at McCullough and
asked him to show his hands. McCullough failed to
do so or, indeed, to reply in any manner;
6. After DeLeon’s cruiser collided with McCullough’s
truck, and while DeLeon was pinned inside just
inches from McCullough, McCullough revved his
engine and DeLeon heard McCullough spin his
wheels;
7. Moments later, McCullough backed up his truck,
turned his wheels toward Antolini and drove the
truck towards Antolini’s cruiser. Antolini had to
quickly jump onto the hood of his police cruiser in
order to avoid being hit by McCullough’s truck, and
the truck struck Antolini’s car at the front passenger
corner or front right bumper;
8. McCullough then drove away toward a parked taxi
cab and the exit of the parking lot leading to the
street;
9. The entire incident, from the time of the initial
collision with DeLeon’s cruiser until McCullough’s
truck finally rolled to its ultimate stop near the exit
of the parking lot, took place over a very short
period of time.
In short, the sheriff’s deputies used deadly force in a split-second situation
where a suspect late at night refused to pull over, engaged in a high-speed chase,
17
and then, after pulling over, repeatedly refused to show his hands or respond to
officers, revved his engine, and then drove his truck toward the deputy standing
nearby in a parking lot.
As in Pace, Robinson, and Long, McCullough used his vehicle in a
dangerous and aggressive manner which provided the officers with probable cause
to believe that McCullough, while driving his truck, posed a threat of serious
physical harm or death to the officers, or other passersby, especially in light of the
speed with which the incident unfolded. Specifically, McCullough's initial
attempts to evade police, his failure to heed police warning of the potential use of
deadly force, his later attempt to drive a truck towards an officer on foot, and his
still later apparent attempt to drive away from the officers toward the exit of the
parking lot provided the officers with sufficient reason to believe the use of deadly
force was necessary.
Thus, on the particular facts of this case, especially in light of the deference
we afford the split-second police judgments in the field and our prior precedent in
this difficult area, we are constrained to conclude that deputies Antolini and
DeLeon had probable cause to believe that the suspect posed a direct threat of
serious physical harm or death, gave an adequate warning under the
circumstances, and had powerful reason to believe that the use of deadly force was
18
necessary to prevent escape. Simply put, the force used against McCullough was
not excessive under the Fourth Amendment and the officers were entitled to
qualified immunity. Because we can discern no constitutional violation, we need
not address whether the constitutional right at issue had been clearly established
when the incident arose.
III.
Accordingly, we reverse the district court’s denial of the defendants’ motion
for summary judgment and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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