Carlos Montero v. Ric Bradshaw, et al
Filing
Opinion issued by court as to Appellant Carlos Montero. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________
No. 15-14661
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D. C. Docket No. 9:12-cv-80406-KLR
CARLOS MONTERO,
Plaintiff - Appellant,
versus
RAMESH NANDLAL,
in his individual capacity,
Defendant - Appellee.
______________
Appeal from the United States District Court
for the Southern District of Florida
______________
(March 9, 2017)
Before MARCUS, DUBINA, and WALKER, * Circuit Judges.
PER CURIAM:
*
Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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Plaintiff-Appellant Carlos Montero (“Plaintiff”) appeals the district court’s
order granting judgment as a matter of law to Defendant Ramesh Nandlal
(“Nandlal”) on Plaintiff’s 42 U.S.C. § 1983 excessive force claim. Nandlal, a
deputy with the Palm Beach County Sheriff’s Department, shot and killed
Plaintiff’s brother, the decedent Richard Montero (“Montero”), during a
confrontation that occurred on April 9, 2010. Plaintiff sued Nandlal in his
individual capacity under § 1983, alleging that Nandlal used excessive force in
violation of the Fourth Amendment. Following a trial, the jury reached a general
verdict finding that Plaintiff was entitled to damages because of Nandlal’s use of
excessive force. The jury answered a special interrogatory in favor of Nandlal—
finding that he had made an objectively reasonable mistake in shooting Montero.
Based on the jury’s findings of fact in the special interrogatory, the district court
held that Nandlal was entitled to qualified immunity and granted judgment as a
matter of law.
After careful review, and having the benefit of oral argument, we conclude
that the district court properly granted judgment as a matter of law, and
accordingly affirm.
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I.
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BACKGROUND
A. Factual Background
This is a tragic case. The evidence presented at trial showed that Nandlal
and fellow Palm Beach County Sheriff’s Deputy Victor Blackman (“Deputy
Blackman”) responded to an abandoned vehicle call during the early morning
hours of April 9, 2010. [DE 128 at 50]. The deputies found Montero asleep at the
wheel of an SUV with the engine running. [Id. at 50-51]. The deputies knocked
on the window to wake Montero, and were able to put the SUV in park. [Id. at 52].
The deputies ordered Montero out of the SUV, and observed that he was unsteady
and smelled of alcohol. [Id. at 53-54]. Because of Montero’s apparent
intoxication, the deputies called Montero’s ex-girlfriend and current roommate,
Nancy Schiff (“Schiff”), to come and retrieve him. [Id.]. Upon Schiff’s arrival,
Montero initially complied with the deputies’ orders to enter Schiff’s vehicle.
However, Montero began yelling at the deputies and exited the vehicle when he
learned his SUV was going to be towed. [Id. at 118, 128-29].
After Montero ignored several orders to get back into Schiff’s vehicle,
Deputy Blackman made the decision to arrest Montero for disorderly intoxication
and began to place him in handcuffs. [Id. at 119, 129]. Before Deputy Blackman
could secure the second handcuff, Montero became enraged, pushing both deputies and
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pulling away from them. [Id. at 130]. A struggle between Montero and the two deputies
ensued.
As witness Schiff described,
[T]here was, you know, cussing and yelling, and they were saying, oh, you know,
get down on the ground, and he was saying, No. You’re trying to F me, and all
this stuff. And there was lots of struggling and fighting. They were grabbing him.
They were trying to pull him down. Eventually, they all ended up down on the
ground in a pile again, fighting and trying to cuff him.
[Id. at 120]. Nandlal testified that Montero threatened him, and attempted to grab his
groin and bite his legs; however Schiff did not hear this particular threat or see Montero
engage in such behavior. [Id. at 132, 166, 173; DE 128 at 64, 67]. The deputies also
testified that Montero grabbed for their guns or magazine belts, but Schiff denied ever
seeing Montero reach for, or gain access to, either of the deputy’s guns. [DE 128 at 68,
DE 127 at 122, 145-46, 199-200].
This intense physical fight lasted for several minutes, during which time the
deputies repeatedly, and unsuccessfully, tried to control Montero with verbal commands,
hand maneuvers, and, finally, tasing. [DE 127 at 120, 170-73; DE 128 at 63-64]. Schiff
confirmed that the tasing had no effect on Montero, and that he refused to comply with
repeated commands to stop fighting, to get down on the ground, and to give the deputies
his hands. [DE 127 at 132-33]. She testified that the deputies eventually were able to get
Montero “subdued” and “pinned” in a “spread-eagle” position, with each deputy holding
one of Montero’s arms and legs. [Id. at 120, 134, 140]. However, she acknowledged that
even then, Montero never surrendered, but rather kept squirming and wiggling. [Id. at
120-21, 133-34]. The deputies testified that they were never able to gain control over
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Montero. Indeed, it is undisputed that they were not able to secure the second handcuff
to his wrist until after he had been shot. [Id. at 143, 149-59, 165, 176-180; DE 128 at 6567, 81-82].
During the prolonged struggle, Nandlal was knocked to the ground a second time.
[DE 128 at 65-66]. At that point, Nandlal announced that he was going to shoot if
Montero continued to struggle. [Id. at 66, 71; DE 127 at 121, 182]. Schiff recalled
hearing Nandlal give this caution “a couple” of times before finally shooting Montero.
[DE 127 at 121, 134]. Nandlal fired four shots, which all hit and killed Montero. [Id. at
188, 190]. At the time the shots were fired, Nandlal was rising up from lying on his back
and Montero was on the ground in a “slightly seated” position. [Id. at 148; DE 128 at
70].
Sandra Wissinger (“Wissinger”), a passerby on her way to work, was stopped at a
red light and witnessed part of the altercation. [DE 128 at 216]. Wissinger testified that
she saw the deputies struggling with Montero and did not believe they had control over
him or could restrain him. [Id. at 217, 220-21]. While watching the struggle, Wissinger
heard Montero say, “I’m going to kill you,” and saw his hands near the deputies’ guns.
[Id. at 218-29, 236-40].
It is undisputed that Montero was unarmed during the struggle, and that the
deputies had no reason to believe he had any kind of weapon. [DE 127 at 144-45, 159,
197]. Nevertheless, Nandlal testified that he shot Montero because he believed Montero
was going to get his or Blackman’s gun and kill both of them–or otherwise physically
overpower and seriously injure them–during the continued struggle. [DE 128 at 80-81,
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107]. Nandlal further stated that he only had a split second to think about the decision to
shoot and no time for deliberation between shots. [DE 127 at 189; DE 128 at 70, 143].
B. Procedural Background
This is the second time we have considered this case on appeal. In the first
appeal, a panel of our court affirmed the district court’s denial of summary
judgment to the defendant based on qualified immunity. Construing evidence in
the summary judgment record in favor of the Plaintiff, we assumed Montero was
“subdued and immobilized” when Nandlal shot him “without any warning.” We
acknowledged that our factual assumptions might not ultimately be borne out by
the evidence presented at trial. See Montero v. Nandlal, 597 F. App’x 1021, 102527 (11th Cir. 2014).
Subsequently, the district court held a jury trial on Plaintiff’s claim. At the
close of Plaintiff’s evidence, Nandlal moved for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50, asserting two grounds in support of
his motion. First, Nandlal argued that there was insufficient evidence to support a
finding that he had used excessive force against Montero. Second, Nandlal argued
that he was entitled to qualified immunity based on the evidence presented. The
court deferred ruling on the motion until after the verdict.
In reaching its verdict, the jury considered both a general verdict form and a
special interrogatory. The general verdict form asked:
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Do you find from a preponderance of the evidence: (1) That Carlos Montero,
as personal representative of the Estate of Richard Montero, deceased, has
proved that Ramesh Nandlal intentionally used excessive or unreasonable
deadly force upon Richard Montero during his arrest?
[DE 111]. The jury answered this first question in the affirmative. In the block for
damages, the jury indicated that Plaintiff was entitled to $540,000 in compensatory
damages.
Given that response, the jury then proceeded to the special interrogatory,
which asked:
Do you find by a preponderance of the evidence that Deputy Nandlal made
an objectively reasonable mistake when he perceived that Richard Montero
posed an imminent threat of serious physical harm to the deputies or others
at the time that Deputy Nandlal shot Richard Montero with his firearm?
[Id. at 3-4]. The jury answered the special interrogatory in the affirmative.
In response, Nandlal renewed his Rule 50 motion for judgment as a matter
of law, arguing that insufficient evidence supported a finding of excessive force.
He also argued that he was entitled to qualified immunity on the excessive force
claim based on the jury’s answer to the special interrogatory. Plaintiff argued that
the evidence was sufficient to support the jury’s finding of excessive force, and
that the special interrogatory was improper and should not form the basis of
judgment as a matter of law.
The district court granted Nandlal’s motion for judgment as a matter of law
based on qualified immunity. Summarizing the trial testimony, the court noted that
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immediately prior to the shooting, Montero had engaged in a prolonged physical
struggle with the deputies during which he had violently resisted arrest, knocked
the deputies to the ground, tried to bite Nandlal, and ignored repeated commands to
surrender. The district court also pointed out that the deputies had been unable to
control Montero with hand maneuvers or by tasing him, and that Nandlal had
warned Montero that he was in danger of being shot prior to firing at him. [Id.]
Based on those facts, and on the jury’s finding in the special interrogatory, the
court concluded that, “the evidence presented at trial supports the jury’s finding
that Nandlal used excessive force against Montero but that Nandlal made an
objectively reasonable mistake in doing so and is therefore entitled to qualified
immunity.” [DE 131 at 8].
II.
STANDARD OF REVIEW
We review a district court’s entry of judgment as a matter of law de novo.
Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1199 (11th Cir. 2004). “However,
when a district court enters judgment as a matter of law on the ground that a jury's
answers to special interrogatories are consistent with each other but inconsistent
with a general verdict, we review only for an abuse of discretion.” Id. Moreover,
“[w]hile the district court's application of Rule 49(b) is reviewed only for abuse of
discretion, its threshold determination that the jury returned a general verdict
inconsistent with its answers to special interrogatories is a mixed question of law
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and fact, and, as such, it is subject to plenary review.” Id. (internal citation
omitted).
We apply a deferential standard of review to special interrogatory verdict
forms; “[a]s long as they accurately reflect the law, the trial judge is given wide
discretion as to the style and wording employed.” Johnson v. Breeden, 280 F.3d
1308, 1314 (11th Cir. 2002) (internal quotation omitted).
III.
DISCUSSION
At issue is (1) whether the district court erred in entering judgment as a
matter of law in favor of Nandlal, and (2) whether the district court abused its
discretion in submitting the special interrogatory to the jury.
With respect to the first issue, Federal Rule of Civil Procedure 49 governs
the analysis. Although the district court cited to Federal Rule of Civil Procedure
50 for support, it did not err in entering judgment as a matter of law in favor of
Nandlal. Given the inconsistent verdicts, the district court properly entered
judgment in favor of Nandlal on the basis of the jury’s answer to the special
interrogatory. Relatedly, the district court did not abuse its discretion when it
determined sufficient evidence supported the jury’s special interrogatory finding.
Finally, with respect to the second issue, the district court did not abuse its
discretion in submitting the special interrogatory to the jury. The district court did
not ask the jury to make a legal finding on the ultimate issue of qualified
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immunity. Instead, the special interrogatory asked the jury to make a factual
determination about whether Nandlal made an objectively reasonable mistake.
A. The district court did not err in entering judgment as a matter of law in
favor of Nandlal.
To begin with, how and when a defendant can allege a qualified immunity
defense depends on the stage of litigation. This court explained the process in
Johnson v. Breeden,
Where it is not evident from the allegations of the complaint alone that the
defendants are entitled to qualified immunity, the case will proceed to the
summary judgment stage, the most typical juncture at which defendants
entitled to qualified immunity are released from the threat of liability and the
burden of further litigation. . . . But if the evidence at the summary
judgment stage, viewed in the light most favorable to the plaintiff, shows
there are facts that are inconsistent with qualified immunity being granted,
the case and the qualified immunity issue along with it will proceed to trial.
Defendants who are not successful with their qualified immunity defense
before trial can re-assert it at the end of the plaintiff’s case in a Rule 50(a)
motion. That type of motion will sometimes be denied because the same
evidence that led to the denial of the summary judgment motion usually will
be included in the evidence presented during the plaintiff’s case, although
sometimes evidence that is considered at the summary judgment stage may
turn out not to be admissible at trial. . . .
It is important to recognize, however, that a defendant is entitled to have any
evidentiary disputes upon which the qualified immunity defense turns
decided by the jury so that the court can apply the jury’s factual
determinations to the law and enter a post-trial decision on the defense. . . .
A tool used to apportion the jury and court functions relating to qualified
immunity issues in cases that go to trial is special interrogatories to the jury.
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280 F.3d 1308, 1317–18 (11th Cir. 2002) (internal citations and quotations
omitted). Thus, “[w]here the defendant’s pretrial motions are denied because
there are genuine issues of fact that are determinative of the qualified immunity
issue, special jury interrogatories may be used to resolve those factual issues.”
Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996). If the jury finds facts
that establish the qualified immunity defense, the defendant is entitled to judgment
as a matter of law. See id.
Because the central issue is whether the jury’s factual findings entitle the
defendant to prevail on the defense of qualified immunity–not the sufficiency of
the evidence–judgment is more properly viewed as entered pursuant to Rule 49,
rather than Rule 50. See, e.g., Chaney v. City of Orlando, Fla., 483 F.3d 1221,
1227 (11th Cir. 2007) (“[I]n deciding on a Rule 50 motion a district court’s proper
analysis is squarely and narrowly focused on the sufficiency of evidence.”).
Moreover, Rule 49 provides guidance when a jury’s special interrogatory
answers are inconsistent with the general verdict. The rule states,
When the answers are consistent with each other but one or more is
inconsistent with the general verdict, the court may: (A) approve, for entry
under Rule 58, an appropriate judgment according to the answers,
notwithstanding the general verdict; (B) direct the jury to further consider its
answers and verdict; or (C) order a new trial.
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See FED. R. CIV. P. 49(b). A verdict is inconsistent “if answers given by the jury
may not fairly be said to represent a logical and probable decision on the relevant
issues as submitted.” Wilbur, 393 F.3d at 1200 (internal quotation omitted).
If the district court enters judgment pursuant to Rule 49(b)(1)(A), the
decision should ordinarily be affirmed when the jury’s findings on the special
interrogatories are supported by evidence in the record, and the only inconsistency
results from the general verdict. See Wilbur, 393 F.3d at 1204 (affirming a district
court’s entry of judgment as a matter of law when substantial evidence supported
the jury’s answers to each of the special interrogatories and that the general verdict
was the only source of inconsistency).
Here, it is clear that this case involves Rule 49 rather than Rule 50. With
respect to the special interrogatory, Nandlal did not challenge the sufficiency of
evidence on which the jury based its finding. Instead, he argued that he was
entitled to a judgment as a matter of law because of the jury’s answer to the special
interrogatory. Moreover, it is clear that the jury returned a general verdict that was
inconsistent with its answer to the special interrogatory. See Whittier v.
Kobayashi, 581 F.3d 1304, 1310 (11th Cir. 2009) (finding an officer was entitled
to qualified immunity, and thus not liable for damages, when he makes an
objectively reasonable mistake); McCormick v. City of Fort Lauderdale, 333 F.3d
1234, 1246 (11th Cir. 2003) (holding that deadly force is not excessive force where
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the officer has an objective reasonable fear that the suspect poses an imminent
threat of bodily harm).
When the jury returned an answer to the special interrogatory that was
inconsistent with the general verdict, the district court was required to exercise one
of three options: approve the answer notwithstanding the general verdict, direct
the jury for further consideration, or order a new trial. Because the jury’s finding
that Nandlal made an objectively reasonable mistake was supported by evidence in
the record, the district court was well within the scope of its discretion to enter
judgment according to the special interrogatory notwithstanding the general
verdict.1 Although the district court did not explicitly reference Rule 49, it is
evident that it applied the correct Rule 49 analysis; thus the court did not err in
entering judgment as a matter of law in favor of Nandlal.
B. The district court did not abuse its discretion in submitting the special
interrogatory to the jury.
Qualified immunity is a legal question to be decided by the court and cannot
be submitted to the jury. Cottrell, 85 F.3d at 1488. It is improper to even mention
1
It appears that neither the trial judge nor the parties recognized the inconsistency in the verdict.
“We have held that if a party challenging this type of verdict has failed to object before the jury
is discharged, that party has waived the right to contest the verdicts on the basis of alleged
inconsistency.” Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1419 (11th Cir. 2011)
(internal quotation omitted). Thus, by not objecting, Plaintiff waived challenging the
inconsistent verdict. However, as discussed above, even if Plaintiff timely objected, the district
court did not abuse its discretion.
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the term qualified immunity in the jury interrogatory; the jury is “restricted to the
who-what-when-where-why type of historical fact issues.” Id.
Here, the special interrogatory did not ask the jury to decide a legal question,
nor did it mention the term qualified immunity. Rather, it asked a factual
question–whether Nandlal made an objectively reasonable mistake–albeit at a
higher level of abstraction than the Plaintiff would have preferred. Although the
district court could have framed the questions more narrowly, e.g., whether
Montero grabbed Nandlal’s gun belt, or whether Montero was subdued before the
shooting, it was not required to. As such, we conclude that the district court did
not abuse its discretion in propounding the special interrogatory.
IV.
CONCLUSION
For the reasons discussed, the district court did not abuse its discretion
entering judgment as a matter of law in favor of Nandlal. Accordingly, the district
court’s judgment is affirmed.
AFFIRMED.
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WALKER, Circuit Judge, concurring:
I fully agree with the majority’s decision to affirm the district court’s grant
of qualified immunity to Officer Nandlal. However, I arrive at that result by
different reasoning. In short, I believe that (1) the district court abused its
discretion by giving the jury what amounted to a question of law regarding Officer
Nandlal’s qualified immunity defense, and (2) that there is no inconsistency
between the jury’s general verdict and its answer to the special interrogatory. I
ultimately conclude that no remand is required, however, because on the
undisputed facts adduced at trial, Officer Nandlal was entitled to qualified
immunity.
A. The district court improperly submitted a question of law to the jury
The district court effectively gave the qualified immunity ruling to the jury
by asking it to determine whether the officer made an objectively reasonable
mistake. The court should have asked the jury to resolve specific factual disputes,
such as whether Montero was out of control, or reaching for Nandlal’s gun. See
Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (noting that special
interrogatories relating to a qualified immunity defense should be limited to the
“who-what-when-where-why type of historical fact issues”). Based on the jury’s
answers to those questions, the court should have determined for itself and without
jury input whether Nandlal made an objectively reasonable mistake of fact in
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believing that Montero posed such a threat to him as to warrant the use of deadly
force, and thus whether he had arguable probable cause to use such force. See
Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th Cir. 1991) (“[O]nce the defense of
qualified immunity has been denied pretrial due to disputed issues of material
facts, the jury should determine the factual issues without any mention of qualified
immunity.”).
This method of resolving Nandlal’s qualified immunity defense is consistent
with the weight of federal precedent, which holds that the “objective
reasonableness” of an officer’s use of force is a question of law for the court alone
to resolve. See Harris v. Coweta Cty., 21 F.3d 388, 390 (11th Cir. 1994) (holding
that, for purposes of qualified immunity, the question of “whether the law
allegedly violated was clearly established at the time of the complained-about
conduct, and, if it was, whether the official's conduct was objectively reasonable in
light of the information known to the official at the time,” are “objective, albeit
fact-specific, inquiries, which we undertake as questions of law”) (citation
omitted); see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)
(“Whether an official's conduct was objectively reasonable is a question of law for
the court, not a matter of fact for the jury.”); Engleman v. Deputy Murray, 546
F.3d 944, 947 (8th Cir. 2008) (“Whether an official's conduct was objectively
reasonable is a question of law.” (quoting Ripson v. Alles, 21 F.3d 805, 808 (8th
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Cir. 1994)); Pitt v. District of Columbia, 491 F.3d 494, 509–10 (D.C. Cir. 2007)
(“[W]hether an objectively reasonable officer would have believed his conduct to
be lawful, in light of clearly established law . . . is a question of law that must be
resolved by the court, not the jury.”); Zellner v. Summerlin, 494 F.3d 344, 368 (2d
Cir. 2007) (“Once the jury has resolved any disputed facts that are material to
the qualified immunity issue, the ultimate determination of whether the officer's
conduct was objectively reasonable is to be made by the court.”); Cole v. Ruidoso
Mun. Sch., 947 F.2d 903, 905 (10th Cir. 1991) (“The question[] of . . . whether the
official's acts were objectively reasonable, [is a] question[] of law for the court to
determine.” (quoting Campbell v. Mercer, 926 F.2d 990, 992 (10th Cir.1991))).
This precedent makes perfect sense because, in the context of an alleged
violation of the Fourth Amendment, whether an officer’s conduct is objectively
reasonable in light of the surrounding circumstances is a question of constitutional
law that only a court can decide. The reasonableness of an officer’s use of force is
subject to the same analysis as the Fourth Amendment standard for “reasonable”
seizures. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“Determining 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.” (citations omitted)); Zellner, 494 F.3d at 368 (“If
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there is no dispute as to the material historical facts, the matter of whether the
officer's conduct was objectively reasonable is an issue of law to be determined by
the court. If there is such a dispute, however, the factual questions must be
resolved by the factfinder.” (citations and internal quotation marks omitted)); cf.
Penley v. Eslinger, 605 F.3d 843, 848–49 (11th Cir. 2010) (once all factual
disputes regarding qualified immunity defense have been resolved at summary
judgment, “the reasonableness of the officer's actions is a pure question of law”)
(alteration, citation, and internal quotation marks omitted). Thus, the question of
what circumstances existed at the time that the defendant effected a seizure is a
question of fact for the jury. The question of whether the defendant’s actions or
perceptions were “objectively reasonable” under those circumstances is a question
of constitutional law for the court. See Heien v. North Carolina, 135 S. Ct. 530,
542 (U.S. 2014) (“The issue is whether the facts satisfy the relevant statutory or
constitutional standard, or to put it another way, whether the rule of law as applied
to the established facts is or is not violated.” ) (alteration, citation, and internal
quotation marks omitted).
I believe that the Plaintiff Estate’s proposed special interrogatory, which
asked discrete factual questions such as whether Montero attempted to grab a gun
during the struggle, more accurately reflected the role of special interrogatories in
resolving a motion for judgment as a matter of law on qualified immunity grounds.
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My view is that it was error for the district court to submit to the jury the question
of whether Officer Nandlal made an “objectively reasonable mistake,” and then to
rely upon that finding to conclude that there was qualified immunity.
B. The general verdict finding liability was not inconsistent with the
separate finding that the officer was entitled to qualified immunity
I further believe that the jury’s finding in the general verdict that Officer
Nandlal used excessive force can be reconciled with a finding that he is entitled to
qualified immunity. I start with the principle that “jury verdicts must be interpreted
so as to avoid inconsistency whenever possible.” Freeman v. Chi. Park Dist., 189
F.3d 613, 615 (7th Cir. 1999). A court should only take the unusual step of finding
verdicts to be inconsistent when “there is ‘no rational, non-speculative way to
reconcile . . . two essential jury findings.’” Reider v. Philip Morris USA, Inc., 793
F.3d 1254, 1259 (11th Cir. 2015) (quoting Witt v. Norfe, Inc., 725 F.2d 1277, 1278
(11th Cir.1984)). If “there is a view of the case which makes the jury's answers
consistent, the court must adopt that view and enter judgment accordingly.” Burger
King Corp. v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983) (quoting Griffin v.
Matherne, 471 F.2d 911, 915 (5th Cir.1973)).
On appeal, the Plaintiff Estate argues that the jury’s verdicts are inconsistent
because in the general verdict it found that Officer Nandlal “intentionally” used
“excessive” force, while in the special interrogatory it found that he had made an
“objectively reasonable” mistake of fact as to whether Montero was dangerous.
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While I believe the jury should not have been asked about the “reasonableness” of
Nandlal’s conduct, the Estate’s position is meritless. Courts frequently reach the
conclusion that an officer violated the Fourth Amendment by using excessive force
without probable cause, but that he should nonetheless be entitled to qualified
immunity because the use of force was justified by arguable probable cause (i.e.,
reasonable officers could have disagreed as to whether probable existed). Cf.
Turner v. Jones, 415 F. App'x 196, 201 (11th Cir. 2011) (“Probable cause to arrest
exists when law enforcement officials have facts and circumstances within their
knowledge sufficient to warrant a reasonable belief that the suspect had committed
or was committing a crime. When determining whether an official is entitled to
qualified immunity, however, the issue is not actual probable cause, but only
arguable probable cause.” (citation and internal quotation marks omitted)). In
other words, there is nothing inconsistent in a court concluding that the officer’s
conduct violated the Constitution, but that the officer reasonably believed that it
did not. That is precisely what happened here in the context of the use of excessive
force. In such a case, the verdicts are not inconsistent, and Fed. R. Civ. P. 49 is not
implicated. Rather, the defendant is entitled to seek judgment as a matter of law on
his qualified immunity defense under Fed. R. Civ. P. 50. Wilkerson v. Seymour,
626 F. App'x 816, 817 (11th Cir. 2015) (“When, as here, the affirmative defense of
qualified immunity has been properly pled and preserved at trial through a Rule 50
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motion, a defendant is entitled to renew a motion for judgment as a matter of law
on the basis of qualified immunity.” (citation and internal quotation marks
omitted)).
To the extent that the majority believes the jury’s verdicts were inconsistent
because the general verdict form listed a specific dollar amount of damages to
which the Estate was entitled, while the special interrogatory afforded Nandlal
qualified immunity, I must disagree. The general verdict asked the jury whether
Officer Nandlal intentionally used excessive force, and if so the amount of money
in damages for which he was liable. The jury found that Nandlal did use excessive
force, and calculated a damages amount. The jury then proceeded to answer in the
affirmative what was (in the majority’s interpretation) a question of fact: Whether
Nandlal had made an “objectively reasonable” mistake of fact as to Montero’s
dangerousness. Relying on that answer, the court (not the jury) confirmed that
Officer Nandlal was entitled to qualified immunity, and therefore not liable.
I believe the inconsistency issue would have been even easier to resolve had
the jury simply been asked to determine discrete questions of narrative fact in the
interrogatories, and the court alone had determined qualified immunity, but in any
event there is no inconsistency here. The jury found Officer Nandlal liable for
damages, but it also made a (consistent) finding, on the basis of which the court
confirmed that qualified immunity applied. Such results are routinely sustained by
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appellate courts. See, e.g., Chaney v. City of Orlando, 291 F. App'x 238, 240 (11th
Cir. 2008) (affirming the district court’s grant of defendant police officer’s Rule 50
motion for judgment as a matter of law on qualified immunity grounds, based on
the jury’s answer to certain special interrogatories, notwithstanding the jury’s
general verdict that the defendant had used excessive force). They do not fall into
the very narrow category of cases in which there is “no rational, non-speculative
way to reconcile . . . two essential jury findings.” Reider, 793 F.3d at 1259 (citation
omitted).
C. Notwithstanding its error, the district court’s grant of qualified
immunity should be sustained based on undisputed facts contained in
the record
Ultimately, however, the district court’s error in submitting what amounted
to a question of law to the jury does not require remand for a new trial. The record
developed at trial contains ample evidence from which the only reasonable
conclusion is that qualified immunity was warranted. Indeed, the relevant portions
of the officers’ testimony were largely corroborated by the independent witnesses.
Specifically, uncontradicted testimony at trial established that Montero had “red,
bloodshot, watery eyes” and “smelled strongly of alcohol” during the time of the
arrest. Montero’s girlfriend testified that once Montero was told that his car would
be towed, a “huge struggle ensued” in which there was “cussing and yelling” and
“lots of struggling and fighting.” Eventually, Montero, Nandlal, and Nandlal’s
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partner, Blackmun, “all ended up down on the ground in a pile again, fighting and
[with the officers] trying to cuff him.” At one point, Montero yelled “I’m going to
rip your balls off,” and the officers unsuccessfully tried to stop him with a taser.
Notwithstanding the trial court’s denial of summary judgment upon a limited
record, I am convinced that the full record at trial properly understood and taken in
the light most favorable to the plaintiff compels the conclusion that Nandlal acted
with arguable probable cause when he shot Montero. The officers had tried without
success every non-lethal method at hand to bring the enraged Montero under
control, and therefore it was reasonable for Officer Nandlal to conclude that the
use of deadly force was necessary.
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