Jones v. City of Albertville et al
MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/28/2014. (AHI )
2014 Oct-28 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CITY OF ALBERTVILLE, )
ALABAMA; NATHAN SHIPP; )
MICHAEL MAHER; and DOUG )
SANDRA JONES, as personal
representative of, and on behalf of the
survivors of, CHRIS JONES,
Civil Action No. CV-12-S-96-NE
Plaintiff, Sandra Jones, is the widow of Chris Jones, who was shot and killed
by an Albertville, Alabama Police Officer. Her complaint alleged claims against
Officers Michael Maher and Nathan Shipp, the City of Albertville, and Albertville
Police Chief Doug Pollard,1 but she subsequently dismissed her claims against the
City and Chief Pollard.2 The action presently is before the court on the motion for
summary judgment, and motion to exclude the testimony of plaintiff’s expert, filed by
See doc. no. 1 (Complaint), ¶¶ 3-7, 15-33. The complaint spelled Nathan Shipp’s surname
as “Ship,” but most of the parties’ subsequent pleadings spell his last name as “Shipp.”
Doc. no. 19 (Consent Motion to Dismiss); doc. no. 21 (Order Dismissing Fewer than All
defendants Maher and Shipp.3 Plaintiff’s responsive brief conceded that Nathan Shipp
“is entitled to the summary judgment he seeks.”4 Thus, the following opinion
considers the subject motions only as they relate to plaintiff’s claims against the
remaining defendant, Officer Michael Maher.
Upon consideration of the pleadings, briefs, evidentiary submissions, and oral
arguments of counsel, this court concludes that both motions are due to be granted, but
only in part.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
making this determination, the court must review all evidence and make all reasonable
inferences in favor of the party opposing summary judgment.” Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of
See doc. nos. 37 (Motion for Summary Judgment) and 39 (Motion to Exclude).
Doc. no. 41 (Response to Summary Judgment), at 1.
Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving
party are not unqualified, however. “[A]n inference is not reasonable if it is only a
guess or a possibility, for such an inference is not based on the evidence, but is pure
conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321,
1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive law
dictate the materiality of a disputed fact. A genuine issue of material fact
does not exist unless there is sufficient evidence favoring the nonmoving
party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). see also Saucier v. Katz, 533 U.S. 204, 201 (2001) (“A court required to
rule upon the qualified immunity issue must consider . . . this threshold question:
Taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officers conduct violated a constitutional right?”) (emphasis supplied).
II. SUMMARY OF FACTS
The following statements are the “facts” for summary judgment purposes only,
and may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension
Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). All reasonable doubts have been resolved
in favor of plaintiff, the nonmoving party. See Info. Sys. & Networks Corp. v. City of
Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
Plaintiff and her husband, Chris Jones, drove to 272 Old Glory Lane in
Albertville, Alabama on the night of Monday, March 21, 2011, for the purpose of
visiting their daughter, Fendi, who then was residing at that location with her
boyfriend, Zach Collins.5 Five persons were present when plaintiff and her husband
arrived: Fendi Jones; Zach Collins; Greg Logan; Allison Lewis; and Brandon Jones
(who was not related to plaintiff, her husband, or Fendi Jones).6 During their visit,
Chris Jones consumed a great deal of alcoholic liquor and beverages.7 His drunken
behavior upset plaintiff, so much so that she telephoned Adam Chandler, her son from
a previous marriage, and asked him to come for her.8 At some point thereafter, Chris
and Brandon Jones began to fight. Chris Jones brandished a knife during the brawl.9
Fendi telephoned 911,10 and asked the operator to send police because “people [were]
fighting” and attempting “to kill each other”; she added that one of them had “pulled
out a knife,” and the persons involved were drunk.11
Doc. no. 37-1 (Collins Deposition), at 14; doc. no. 37-2 (Logan Deposition), at 10, 13-15;
and doc. no. 37-3 (Fendi Jones Deposition), at 12-14.
Doc. no. 37-3 (Fendi Jones Deposition), at 14-15, 22.
See doc. no. 37-1 (Collins Deposition), at 21, 35-36; doc. no. 37-2 (Logan Deposition), at
Doc. no. 37-4 (Sandra Jones Deposition), at 12, 57, 68-69.
Doc. no. 37-1 (Collins Deposition), at 20-23; doc. no. 37-2 (Logan Deposition), at 15-16,
Doc. 37-3 (Fendi Jones Deposition), at 23, 37.
Exhibit E, on file with the clerks office, audio file 1 at 0:28, 2:07, 2:52 (alterations
The 911 operator dispatched Albertville Police Officers Josh Isbell and Nathan
Shipp in response to the call,12 telling them that several people were fighting and that
at least one had a knife.13 Officer Michael Maher heard the dispatch on his home
radio and also responded, even though he had not been directed to do so, because he
lived only three miles from Zach Collins’s house.14
The fight escalated after Fendi Jones placed the 911 call. Chris Jones
eventually got into his pickup truck and attempted to run over Zach Collins, who had
twice disarmed him, but in his intoxicated state Jones missed Collins and rammed the
house instead.15 As Chris Jones was backing his truck away from the house, Officers
Isbell and Shipp arrived in separate police cruisers. Officer Maher also arrived at
about the same time, but positioned his patrol car at the entrance to the subdivision.16
Jones fled the scene in his pickup truck, and led all three officers in a lengthy
pursuit. During the chase, Jones drove recklessly, at speeds often exceeding 70 miles
per hour, across several lawns, in and out of ditches on each side of the road, and
swerved back and forth across both lanes. He failed to stop for at least five stop
Doc. no. 37-5 (Isbell Deposition), at 10.
Doc. no. 37-7 (Maher Deposition), at 40-41.
Doc. no. 37-2 (Logan Deposition), at 21-25.
Doc. no. 37-7 (Maher Deposition), at 41-42.
signs.17 At one point, he applied his brakes suddenly and unexpectedly, causing
Officer Isbell to turn his patrol car sharply to the right, in an attempt to avoid a
collision. He only partially succeeded. Isbell’s cruiser scraped the rear of Jones’s
truck,18 and ricocheted off the roadway into a ditch.19 The resulting crash disabled
Isbell’s patrol car, and Officer Shipp had to assume the lead position as the pursuit
continued, with Officer Maher bringing up the rear.20
Jones continued his reckless course for several more minutes, swerving back
and forth across both lanes, running stop signs, and speeding through an intersection.21
Eventually he came to another sudden stop,22 forcing Officer Shipp to come to a quick
stop close behind the rear of Jones’s truck.23 Officer Maher maneuvered his cruiser
around the driver’s side of Shipp’s patrol car, in an attempt to box Jones in, between
the two police cars.24 As he pulled even with the front of Shipp’s vehicle, however,
See Exhibit J (Shipp Dash Cam), on file with the clerks office; Exhibit K (Maher Dash
Cam), on file with the clerks office; and Exhibit L (Isbell Dash Cam), on file with the clerks office.
Exhibit L (Isbell Dash Cam), on file with the clerks office, at 2:59; doc. no. 37-5 (Isbell
Deposition), at 21.
Doc. no. 37-5 (Isbell Deposition), at 22-23.
Doc. no. 37-6 (Shipp Deposition), at 18.
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 2:45-5:20.
Id. at 5:20.
Id. at 5:19.
Exhibit K (Maher Dash Cam), on file with the clerks office, at 5:08; doc. no. 37-11 (ABI
Report), at ECF 18. “ECF” is the acronym for “Electronic Case Filing,” a system that allows parties
to file and serve documents electronically. See Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL
4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 permits citations to the “page
numbers generated by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C.
the reverse lights on Jones’s pickup truck suddenly lit up, and the truck shot
backwards, slamming into the front of Shipp’s patrol car.25 The truck rode up, over
the top of Shipp’s “push bumper” and hood, and came to a rest with its rear wheels off
the ground.26 The truck then rolled back forward, but its rear bumper became
entangled with Shipp’s push bumper.27
At that moment, Shipp began to fire his duty weapon at Jones through the front
windshield of his patrol car.28 He discharged all fifteen rounds in the pistol’s clip
within six seconds after opening fire,29 but none of the bullets struck Jones, apparently
because he was not sitting in an upright position behind the steering wheel of his
truck, but lying prone across the passenger seat.30
Officer Maher began firing his pistol at Jones as soon as Shipp discharged all
2011) (citing The Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21 (Columbia Law Review
Ass’n et al., 19th ed. 2010)). Even so, the Bluebook recommends “against citation to ECF
pagination in lieu of original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless stated
otherwise, this court will cite the original pagination in the parties’ pleadings. When the court cites
to pagination generated by the ECF header, it will, as here, precede the page number with the letters
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:23.
Doc. no. 37-7 (Maher Deposition), at 49.
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:26; doc. no. 37-11 (Thomas
Deposition), at 20-21.
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:27.
Id. at 5:27-5:33.
Doc. no. 37-9 (Gowitt Deposition), at 25-27.
of the rounds in his weapon.31 He discharged thirteen shots within five seconds and
then paused.32 As Maher approached the truck on the driver’s side, with his weapon
aimed at the cab, Jones suddenly sat up behind the steering wheel, and Maher ripped
off two more shots.33 That occurred a little more than seven seconds after the end of
Maher’s initial volley. The engine of Jones’s truck still was running.34 Consequently,
Maher opened the driver’s door, reached into the truck, and removed the ignition
key.35 Neither Shipp nor Maher had issued any verbal commands to Jones before
discharging their weapons.36
It later was determined that Jones had sustained three gunshot wounds, and that
all of them had been inflicted by bullets fired from Officer Maher’s duty weapon.37
Only one of the wounds was fatal: the shot that entered Jones’s chest and pierced his
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:33; doc. no. 37-7 (Maher
Deposition), at 21.
See Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:33-5:38; Exhibit K
(Maher Dash Cam), on file with the clerks office, at 5:28.
Doc. no. 37-7 (Maher Deposition), at 26; Exhibit J (Shipp Dash Cam), on file with the
clerks office, at 5:44. According to Officer Maher: “I had about three seconds to make that decision
. . . .” Doc. no. 37-7 (Maher Deposition), at 53.
Doc. no. 37-7 (Maher Deposition), at 26.
Id. at 38-39. Officer Maher testified that he also shifted the truck from reverse to park, id.,
but that is disputed by plaintiff in light of the video evidence. See Exhibit J (Shipp Dash Cam), on
file with the clerks office, at 5:54.
Doc. no. 37-7 (Maher Deposition), at 34.
Doc. no. 37-9 (Gowitt Deposition), at 26.
lung.38 The order in which the three wounds were inflicted is not known.39
III. MOTION TO EXCLUDE
Defendant contends that the testimony of plaintiff’s proposed expert witness,
Daniel Busken, Chief of the Greenville, Texas, Police Department, should be excluded
or limited because he is not qualified as an expert, his opinions are based on an
improper foundation, and his testimony would invade the province of the jury.40
Analysis of that motion begins with Federal Rule of Evidence 702, which provides
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and
the expert has reliably applied the principles and methods
to the facts of the case.
Fed. R. Evid. 702. Courts are required to conduct an exacting analysis of the
Id. at 12-13.
Doc. no. 39 (Motion to Exclude), at 1-2, 6-26.
foundations of the witness’s opinions, “to ensure they meet the standards for
admissibility under Rule 702.” United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir.
2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)
(internal quotation marks and emphasis omitted)).
[T]he objective of that requirement is to ensure the reliability and
relevancy of expert testimony. It is to make certain that an expert,
whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied).
“The inquiry . . . is a flexible one,” because “[m]any factors will bear on the
inquiry, and . . . [there is no] definitive checklist or test.” Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations supplied). Factors
that may be relevant include:
(1) whether the theory or technique can be (and has been) tested, (2)
whether the theory or technique has been subjected to peer review and
publication, (3) in the case of a particular . . . technique, the known or
potential rate of error, and (4) whether the theory or technique is
generally accepted by the relevant . . . community.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010)
(internal quotation marks and alterations omitted).41
Additional factors that may be taken into account include:
(1) Whether the expert is proposing to testify about matters growing naturally
and directly out of research he has conducted independent of the litigation, or
Busken’s Background and Qualifications42
Daniel Busken has almost thirty years of law enforcement experience in the
states of Missouri, Alabama, and Texas. He began his career in 1983, in University
City, Missouri, where he served as a police officer, field-training instructor, and
investigator. During his tenure there, Busken also served as a field commander and
deputy director of a narcotics task force. He left that municipality during December
of 1992, after accepting the position of Chief of Police in Crystal City, Missouri: a
position that he held for seven years. He resigned that position in January of 2000,
in order to accept the position of Chief of Police in Madison, Alabama, where he
served for nine years, leaving in February of 2009. He became Chief of Police in
Greenville, Texas in September of 2010.
Busken developed policies for the use of force and pursuit procedures while
serving as the Chief of Police for the three municipalities identified in the preceding
whether he has developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted to an
(3) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting;
(4) Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.
Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (internal citations omitted).
All information in this section comes from Busken’s Expert Report, doc. no. 41-5, at 2.
paragraph, and reviewed compliance with those policies. Those reviews generally
required him to investigate the events preceding an officer’s use of force or pursuit of
a fleeing suspect, the actions of the offenders and officers and, ultimately, to
determine whether the outcome complied with relevant departmental policies.
In addition to his thirty years of on-the-job experience in police procedures,
Busken has some education and training in law enforcement. He completed 33 hours
of course credit toward a Doctorate degree in Business and Criminal Justice at
Northcentral University, and he received training at the FBI National Academy’s Law
Enforcement Executive Development Seminar.
Busken’s Expert Report
The written report required by Federal Rule of Civil Procedure 26(a)(2)(B) is
quoted in the Appendix to this opinion.
Officer Maher contends that Busken is not qualified to testify as an expert
because he does not have any special education or training in police practices, tactics,
or deadly force decision making, his experience in pursuits and the use of force as a
law enforcement officer is limited, and his experience as Chief of Police is not
Doc. no. 39 (Motion to Exclude), at 6-9.
As previously noted, however, more than twenty of Busken’s thirty years of law
enforcement experience was spent as a Chief of Police. As such, he participated in
numerous investigations of pursuits and the use of force.44 Therefore, he is qualified
to offer testimony concerning relevant, generally-accepted police standards and
procedures, and to state whether, in his opinion, Officer Maher adhered to such
standards. See Fed. R. Evid. 702(a) (providing that a witness may be qualified as an
expert by virtue of his “knowledge, skill, experience, training, or education”).
Opinion on Adherence to Reaction Times Policies
Busken opines that Officers Isbell and Shipp failed to adhere to the provisions
of the Albertville Police Department’s Policies and Procedures Manual related to
reaction time and reactionary gaps because their pursuit tactics put too little distance
between them and Jones’s pickup truck during the high-speed chase.45
Officer Isbell’s police vehicle was too close to Jones’ truck during the
pursuit. This prohibited Officer Isbell from reacting to Jones’ maneuvers
and avoiding a collision. Later in the incident, when Jones stopped the
truck, Officer Shipp was too close to Jones’ truck, leaving Shipp with no
Reactionary Gap. Some may argue this portion of policy is not relevant
during a vehicular pursuit; however, the Albertville policy clearly states
Reaction Time and Reactionary Gap are relevant “during all police
Doc. no. 41-5 (Busken Report), at 3.46 Officer Maher contends that the foregoing
Doc. no. 41-5 (Busken Report), at 2.
Doc. no. 41-5 (Busken Report), at 3.
See also the Appendix, infra at 45.
opinion is based upon unsound methodology.47 He argues that Busken cannot
articulate how the pursuit would have turned out differently, if Officer Shipp’s police
cruiser had been further away from Jones’s truck when Jones suddenly, and
unexpectedly, applied his brakes. Maher also contends that Busken contradicted his
own report during his deposition.48
This contested opinion relates only to the actions of Officer Shipp, and plaintiff
has conceded that Shipp is entitled to summary judgment.49 Accordingly, this aspect
of the motion to exclude is due to be denied as moot.
Opinions Related to Officer Shipp’s Push Bumper and Jones’s Truck
Busken also opined that:
Review of the video from Officer Shipp’s patrol vehicle shows Jones
back his truck into the front of Shipp’s vehicle. While the police vehicle
is stationary, the truck continues and the rear of the truck “rides up”
slightly onto the push-bumper and hood of Shipp’s patrol car. The push
bumper stopped the backward motion of Jones’ truck, disabled Jones’
truck[,] preventing it from continuing its backward movement, and ended
the immediate threat of death or serious physical injury. Jones’ truck
appears to be stuck on the push bumper preventing the truck from
moving backward any further. . . .
I do not think the lethal force used by Officer Shipp was reasonable
because Jones backed into the strongest part of the police car. Officer
Doc. no. 39 (Motion to Exclude), at 10-15.
Id. at 12-15.
Doc. no. 41 (Response to Summary Judgment), at 1.
Maher reinforced this opinion in his deposition. “You cannot disable a
vehicle by shooting at the engine block, it’s the strongest part on the
vehicle” (p. 58). Jones backed into the engine compartment. The front
of Shipp’s police vehicle was fortified by what is referred to as a “push
bumper”. Shipp was aware of the protection provided by a push bumper.
In his deposition, referring to the push bumper, Shipp said, “It’s a metal
push bar that we use to — that kind of protects the front end of the car”
(p. 84). A manufacturer website, Go Rhino — Public Safety Division
(www.gorhinopd.com/testimonials.aspx), offers several testimonials of
police officers throughout the United States. These stories prove the
push bumper absorbs a lot of the impact, allowed an officer to walk away
from a head-on collision, and another push bumper saved the officer
from serious injury or death.
Doc. no. 41-5 (Busken Report), at 4-5 (emphasis and alteration supplied).50
Officer Maher contends that Busken’s opinion that Officer Shipp was
adequately protected by the push bumper on the front of his police cruiser has no
factual foundation.51 See Fed. R. Evid. 702(b) (an expert witness may testify in the
form of an opinion if “the testimony is based on sufficient facts or data”) (emphasis
supplied). This court agrees.
Busken testified during deposition that, in his opinion, it was unreasonable for
Officer Maher to attempt to protect Officer Shipp by shooting Jones.52 Busken based
his opinion upon his observation that Jones was “backing into the strongest part of
[Officer Shipp’s] police car . . . that’s fortified by a push bumper. And he gets hung
See also the Appendix, infra at 47 and 49-50.
Doc. no. 39 (Motion to Exclude), at 15-18.
Doc. no. 37-15 (Busken Deposition), at 68.
up on it, and then he moves forward. And in my opinion the threat subsides at that
point,”53 because Jones’s truck then was (in Busken’s opinion) “disabled.”54
Busken admits that he is not an engineer,55 he does not know how the push
bumper was attached to the police cruiser,56 and he does not even know the company
that manufactured the bumper attached to Officer Shipp’s cruiser.57 His opinion,
instead, is based upon police officer “testimonials” (i.e., layperson opinions) he
reviewed on the website for “Go Rhino” — a company that sells push bumpers, but
not necessarily the company that manufactured the bumper installed on Officer
While Busken’s thirty years of law enforcement experience is admirable, he
lacks the foundation necessary to render opinions based upon the “strength” of Officer
Shipp’s push bumper. Moreover, Busken admitted that he did not know whether
Jones’s truck could have overpowered the push bumper, if Jones had attempted to
back his truck into Shipp’s cruiser a second time:
Well, you said you’re not an engineer. Neither you nor I nor
anyone else knows if he would have backed up it wouldn’t have
Id. at 69-70.
Id. at 72-73.
Id. at 73.
Id. at 74.
Id. at 32-33.
Doc. no. 37-15 (Busken Deposition), at 32, 134.
overpowered that bumper and come right into Ship[p]’s
windshield. You don’t know that?
Well, you don’t know that, but you’ve already —
Well, you don’t know that.
Well, when I said “You don’t know that,[”] I meant myself. You
don’t know it either, but, you know, what’s the best predictor of
the future is what has happened in the past, and you’ve had it
happen right in front of you here. It stopped it. Okay.
Doc. no. 37-15 (Busken Deposition), at 79 (alterations supplied). In addition, Busken
did not know the engine size or capabilities of Jones’s pickup truck.60 Without that
knowledge, it would be impossible for him to opine that Jones’s truck was “disabled,”
and incapable of being operated further.
Thus, both of his contested opinions — that the push bumper was strong
enough to resist Jones’s truck, and that the truck was “disabled” — lack a sufficient
factual foundation and are due to be excluded.
The Reasonableness of Officer Maher’s Use of Lethal Force
Busken’s opines that Officer Maher’s use of lethal force was not “reasonable.”
Interestingly, if past behavior is the “best predictor of the future,” as Busken claims, it was
reasonable for Officer Maher to believe that Jones would attempt to back his truck over Officer
Shipp’s hood a second time. In fact, Busken conceded that it was not unreasonable to believe that
Jones would have attempted to back his truck into Officer Shipp’s patrol car a second time. Id. at
81 (“I don’t think it’s unreasonable to think gosh, he’s fixing to do that to them again.”). Further,
Busken agrees that as long as Jones was in his truck, the motor was running, and he was capable of
driving, he posed a risk to the public in general. Id. at 132.
Id. at 116.
That conclusion is based, in part, on his opinion that Chris Jones’s truck was
I do not think Officer Maher’s use of lethal force was reasonable
because, according to Maher’s deposition (p. 21), the sole reason Maher
fired at Jones was because Maher believed Jones presented a threat to
Officer Shipp. Jones was backing his truck up onto Shipp’s police
vehicle. Maher’s account is contrary to the video evidence. Shipp’s incar camera clearly shows Officer Maher begin the use of lethal force
(shooting) after the truck is disabled by the push bumper, after the truck
is disengaged from the front of the patrol vehicle, and after the
immediate threat of death or serious injury subsided.
Doc. no. 41-5 (Busken Report), at 6.61
The court previously excluded Busken’s opinion that Jones’s truck was
“disabled.” It follows, therefore, that this opinion, based upon the witness’s factually
unsupported conclusions about the status and capabilities of Jones’s truck, should also
See also the Appendix, infra at 50-51.
Busken also contends that Maher fired his initial volley, “not because Maher perceived
any threat posed by Jones, but because he heard gunshots behind him and [he] thought the shots
were coming from Officer Shipp.” Doc. no. 41-5 (Busken Report), at 6 (emphasis and alteration
supplied). It is not clear whether Busken used that contention to support his opinion that Maher
acted unreasonably. The contention relies upon an Alabama Bureau of Investigation Report that
As MAHER came around the patrol vehicle he saw the reverse lights of the truck
come on and saw the truck drive in reverse onto the hood of SHIPP’s patrol car.
MAHER states he remembered seeing the driver of the truck looking over his right
shoulder with his right hand across the back of the seat, the driver then turned and
looked to his left toward MAHER. MAHER said by this time he was stopping his
vehicle and slightly ahead of Officer SHIPP’s car when he heard gunshots behind
him. MAHER states he thought the shots were coming from Officer SHIPP.
MAHER then exited his vehicle and fired his duty weapon over the top of his car at
The Contention That Busken’s Opinion Usurps the Role of the Jury
Officer Maher also contends that Busken’s testimony usurps the role of the jury,
because he reached the ultimate issue when he opined that Officer Maher acted
“unreasonably.” Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; . . . .
Fed. R. Evid. 702(a) (emphasis supplied). At the summary judgment stage, however,
once the court has “determined the relevant set of facts and drawn all inferences in
favor of the nonmoving party to the extent supportable by the record, the
reasonableness of [the officer’s] actions . . . is a pure question of law.’” Penley v.
Eslinger, 605 F.3d 843, 848-49 (11th Cir. 2010) (quoting Scott v. Harris, 550 U.S.
the driver of the truck.
Doc. no. 37-11 (ABI Report), at ECF 18. Nothing in that report establishes that Officer Maher
began firing his weapon because he heard gunshots behind him. Busken’s contention regarding
Maher’s motivation for firing his initial volley of shots is based upon his supposition and lacks a
sufficient factual foundation. Moreover, even if there was evidence that Officer Maher fired his duty
weapon only because Officer Shipp fired his, Busken’s contention regarding Maher’s initial volley
of shots relates to Maher’s motivations. “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989) (emphasis and
alteration supplied). Accordingly, Busken’s opinion applies an incorrect legal standard if it relies
upon the contention that Maher fired his duty weapon because Shipp fired his.
372, 396 (2007)) (emphasis, alteration, and ellipsis in original).
Here, Busken’s opinions as to the reasonableness of Officer Maher’s actions
will not assist the trier of fact, because it is the role of the judge, and not an expert
witness, to instruct the jury on the applicable principles of law. As the Eleventh
Circuit has stated: “‘Domestic law is properly considered and determined by the court
whose function it is to instruct the jury on the law; domestic law is not to be presented
through testimony and argued to the jury as a question of fact.’” United States v.
House, 684 F.3d 1173, 1209 (11th Cir. 2012) (quoting United States v. Oliveros, 275
F.3d 1299, 1306-07 (11th Cir. 2001)). In other words, “[a]n expert may not . . .
merely tell the jury what result to reach,” and “[a] witness also may not testify to the
legal implications of conduct.” Montgomery v. Aetna Casualty & Surety Co., 898
F.2d 1537, 1541 (11th Cir. 1990) (citations omitted, alterations supplied). Instead,
“the court must be the jury’s only source of law.” Id. (citations omitted).
Although plaintiff does not expressly concede this issue, neither does she
contest it.63 Instead, she asks this court to limit — rather than exclude — Busken’s
testimony to an explanation of the relevant policy standards, and whether Maher
adhered to those standards.64 Officer Maher admits that Busken should be permitted
to “explain to the jury what the relevant police standards are,” and whether Officer
See doc. no. 40 (Response to Motion to Exclude), at 20-21.
Id. at 20.
Maher adhered to those standards.65 The court agrees, and will consider Busken’s
opinions only to the extent that they explain whether Officer Maher adhered to
relevant standards, and to the extent that this court has not already determined that an
opinion is due to be excluded.66
Plaintiff asserts two claims against Officer Michael Maher: a federal claim,
asserted under 42 U.S.C. § 1983, that Maher employed excessive or unreasonable
force in violation of rights guaranteed to Chris Jones by the Fourth Amendment to the
United States Constitution;67 and, a supplemental state-law claim, asserted under 28
U.S.C. § 1367, and based upon Alabama’s wrongful death statute, Ala. Code § 6-5410 (1975).68
Doc. no. 39 (Motion to Exclude), at 23.
Plaintiff also asks the court to allow her to present Busken’s opinion testimony in the form
of a hypothetical pursuant to Eleventh Circuit precedent in Samples v. City of Atlanta, 916 F.2d
1548, 1551 (11th Cir. 1990). Because the court ultimately determines that defendants’ motion for
summary judgment is due to be granted, the court will not consider plaintiff’s request.
See doc. no. 1 (Complaint), ¶¶ 25-28. Plaintiff’s complaint does not explicitly mention
the Fourth Amendment, but that provision, nevertheless, is the constitutional basis for this claim.
In relevant part, the amendment provides that: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
U.S. Const. amend. IV (1791) (emphasis supplied). The “incorporation” of the Fourth Amendment
into the Due Process Clause of the Fourteenth Amendment and, thereby, its application to the
various states of the Union, was finalized by the Supreme Court’s decision in Mapp v. Ohio, 367
U.S. 643 (1961). See also, e.g., Ker v. California, 374 U.S. 23 (1963); Wolf v. Colorado, 338 U.S.
See doc. no. 1 (Complaint), ¶¶ 15-17.
Officer Maher contends that the doctrine of qualified immunity shields him
from liability for plaintiff’s Fourth-Amendment, excessive-force claim. That doctrine
provides “immunity from suit to governmental officials performing discretionary
functions as long as ‘their conduct violates no clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Green v.
Brantley, 941 F. 2d 1146, 1148 (11th Cir. 1991) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). The purpose of the doctrine is to allow government officials
to carry out their discretionary duties without the fear of personal liability or harassing
litigation. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Lee v. Ferraro, 284 F.3d
1188, 1193–94 (11th Cir. 2002). It protects from suit “all but the plainly incompetent
or one who is knowingly violating the federal law.” Hope v. Pelzer, 536 U.S. 730,
752 (2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also, e.g., Lee,
284 F.3d at 1193–94; Chesser v. Sparks, 248 F.3d 1117, 1121–22 (11th Cir. 2001).
In order to be eligible to claim the benefits of the doctrine, however, the public
official “must first prove that ‘he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.’” Courson v. McMillian, 939
F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th
Cir. 1988)). Officer Maher contends that he has done so,69 and plaintiff has not argued
See doc. no. 37 (Motion for Summary Judgment), at 16-17.
otherwise.70 Thus, “the burden shifts to the plaintiff to show that qualified immunity
is not appropriate.” Lee, 284 F.3d at 1194.
Courts generally apply a two-part test for determining whether a defendant is
entitled to claim the benefits of the doctrine of qualified immunity. The “threshold
question” is: Do the facts, viewed “in the light most favorable to the party asserting
the injury,” show that the officer’s conduct violated a constitutional right? Saucier
v. Katz, 533 U.S. 194, 201 (2001). If that question is answered “yes,” then the court
will proceed to analyze the second part of the inquiry: i.e., was the right “clearly
Did Maher’s use of deadly force violate the Fourth Amendment?
The Supreme Court has said that the use of deadly physical force when
attempting to apprehend a fleeing suspect “is a seizure subject to the reasonableness
requirement of the Fourth Amendment.” See Tennessee v. Garner, 471 U.S. 1, 7
(1985). “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
See doc. no. 41 (Response to Summary Judgment), at 19-20.
The Supreme Court recently relieved lower courts from mandatory adherence to the order
of the two-part analysis articulated in Saucier. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth
there is often appropriate, it should no longer be regarded as mandatory.”). It is now within the
court’s discretion to, in appropriate cases, assume that a constitutional violation occurred for the
purpose of addressing, in the first instance, whether such a violation would be “clearly established.”
Id. Nevertheless, under the circumstances of this case, Saucier’s tested sequence of analysis will
hindsight.” Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (internal citation and
quotation marks omitted). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S.
386, 397 (1989) (alteration supplied); see also, e.g., Whren v. United States, 517 U.S.
806, 813 (1996) (holding that a court may not inquire into the actual motivations for
the defendant’s use of force; instead, the only appropriate question is whether a
reasonable officer could have made the same decision); McCullough v. Antolini, 559
F.3d 1201, 1206 (11th Cir. 2009) (holding that a court must “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”).
The reasonableness inquiry “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.
An objective determination of the reasonableness of an officer’s use of force
requires an analysis of all circumstances. See, e.g., Morton v. Kirkwood, 707 F.3d
1276, 1281 (11th Cir. 2013) (holding that a court must “pay ‘careful attention to the
facts and circumstances’ of the case, ‘including 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’”)
(quoting Graham, 490 U.S. at 396).72
More importantly, however, the Supreme Court recently held that, when a
suspect’s flight poses a grave risk to public safety, a police officer’s use of deadly
force to end that risk is reasonable. Plumhoff v. Rickard, — U.S. —, 134 S. Ct. 2012,
2022 (2014). The police in that case terminated a dangerous chase by firing fifteen
shots at a suspect after his automobile collided with a police cruiser, came temporarily
The Eleventh Circuit’s Morton opinion held that
a police officer may constitutionally use deadly force when 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.”
Morton, 707 F.3d at 1281 (emphasis supplied) (quoting McCullough v. Antolini, 559 F.3d 1201,
1206 (11th Cir. 2009)). Although the second precondition listed in the Morton framework was
qualified as “necessary to prevent escape,” that is not accurate. The “necessity” at issue actually is
“‘the need to prevent ‘serious physical harm, either to the officer or to others.’’” Scott v. Harris, 550
U.S. 372, 382 n.9 (2007) (quoting Garner, 471 U.S. at 11). Thus, in a police chase where the
suspect is in a speeding automobile, the “necessity to prevent escape” satisfies the second
precondition because the suspect’s flight itself poses a threat of serious physical harm to others. Id.
The Morton framework, however, is not the sine qua non for determining whether deadly force was
reasonable. As the Eleventh Circuit has noted, Morton’s analytical framework “says something
about deadly force but not everything.” Long, 508 F.3d at 580 (emphasis added). “The Supreme
Court has cautioned that ‘[Morton’s analytical framework] did not establish a magical on/off switch
that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’’” Id.
(quoting Scott, 550 U.S. at 382).
to a near standstill, and the suspect threw his vehicle into reverse in an attempt to
escape. Id. at 2021.
This case is virtually indistinguishable from Plumhoff. Chris Jones, like the
suspect in that case, posed a grave risk to public safety. The chase in this case
exceeded 70 miles per hour at night and lasted just over five minutes. During the wild
pursuit, Jones drove recklessly through residential areas and on poorly lit rural roads,
passed a vehicle, failed to stop at five or six stop signs, swerved into the opposite lane
of traffic on numerous occasions, drove into and out of a ditch, and disabled a police
car by slamming on his brakes and allowing it to collide with his truck. It simply was
fortuitous that, due to the time of night and the sparsely-populated rural areas in which
the dangerous pursuit occurred, so few persons were endangered by Jones’s conduct.
Similar to the police officers in Plumhoff, at the time Maher fired his initial volley of
shots, Jones had backed his truck onto the hood of Officer Shipp’s cruiser, and come
to a temporary standstill. Under the circumstances recorded by the officers’ dash
cameras, a reasonable officer could have concluded that Jones had transformed his
truck into a deadly weapon, and was attempting to crush Officer Shipp. See Pace v.
Capobianco, 283 F.3d 1275, 1281-82 (11th Cir. 2002) (“By the time of the shooting,
Davis had used the automobile in a manner to give reasonable policemen probable
cause to believe that it had become a deadly weapon with which Davis was armed.”).
Just before Officer Maher fired his final shots, Jones sat up behind the wheel
of his still-running truck.73 His sudden movement could have been viewed as an
attempt to regain control of the truck. Therefore, Officer Maher’s reaction was
reasonable. He was not required to wait and see whether Jones intended to back his
truck into and over Officer Shipp’s patrol car yet again, or to leave the scene and,
thereby, evade arrest. Cf. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir.
2010) (“Regardless of whether Jean-Baptiste had drawn his gun, Jean-Baptiste’s gun
[read “truck”] was available for ready use, and Gutierrez was not required to wait ‘and
hope for the best.’”) (quoting Scott v. Harris, 550 U.S. 372, 385 (2007)) (first
alteration supplied, second alteration in original).
Plaintiff contends that, unlike the chase in Plumhoff, “the pursuit of Chris Jones
‘ended’ by the time [Officer] Shipp, and then [Officer] Maher, began their initial
volleys into Jones’s truck, and certainly had ‘ended’ by the time [Officers] Shipp and
Maher completed those volleys,” because Jones’s truck was hooked on Officer
Shipp’s push bumper.74 As previously determined, however, Chief Busken’s opinion
that Jones’s truck was “disabled” is due to be excluded. A reasonable officer at the
scene, forced to make a split-second decision about whether he should shoot Jones,
would have no way of knowing whether Jones intended — or was able — to resume
Id. at 26. See also Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:44.
Doc. no. 41 (Response to Summary Judgment), at 22 (alterations supplied).
his dangerous flight, or to shift his truck into reverse in another attempt to crush
Officer Shipp. See Johnson v. Niehus, 491 F. App’x. 945, 953 (11th Cir. Oct. 16,
2012) (“While, in retrospect, it may appear that Johnson’s aggressive maneuvers were
over after he pulled past Niehus, the officers, who were ‘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’ would not have known
that.”) (quoting Graham, 490 U.S. at 396-97). Plaintiff’s own expert testified that it
was not unreasonable to believe that Jones would again attempt to back his truck into
Officer Shipp’s patrol car;75 and he agreed that, as long as Jones was in the cab of his
truck and behind the wheel with the motor running, he was capable of driving and,
thereby, posed a risk to the public.76
Even if, as plaintiff contends, Jones’s rear bumper was hooked onto Officer
Shipp’s push bumper, there is no guarantee that the push bumper would have
remained attached to the patrol car if Jones had attempted to speed off, or that it would
have remained intact and prevented Jones from backing his truck over the hood of
Shipp’s patrol car, possibly injuring (or crushing) him in the process.77
Thus, the record conclusively disproves [plaintiff’s] claim that the chase
Doc. no. 37-15 (Busken Deposition), at 81 (“I don’t think it’s unreasonable to think gosh,
he’s fixing to do that to them again.”).
Id. at 132.
See supra Part III.E.
in the present case was already over when [Maher] began shooting.
Under the circumstances at the moment when the shots were fired, all
that a reasonable police officer could have concluded was that [Jones]
was intent on resuming his flight and that, if he was allowed to do so, he
would once again pose a deadly threat for others on the road.
Plumhoff, 134 S. Ct. at 2021-22 (alterations supplied).78
Plaintiff attempts to distinguish this case from Plumhoff, based upon the fact
that approximately seven and a half seconds elapsed between the end of Maher’s
initial volley and his final two shots. However, if Maher was “justified in firing at
[Jones] in order to end a severe threat to public safety, [he] need not stop shooting
until the threat has ended.” Id. at 2022 (alterations supplied).
The defendant police officers in Plumhoff fired fifteen shots during a ten-second
span. Id. Here, Maher fired fifteen shots during an eleven-second span, albeit with
a seven-and-a-half-second delay between his initial volley and the final two shots.79
Although the Supreme Court noted that their holding in Plumhoff might be different
if the police officers “had initiated a second round of shots after an initial round had
clearly incapacitated [the suspect] and had ended any threat of continued flight, or if
Plaintiff correctly notes that this court denied defendants’ motion to dismiss, doc. no. 14
(Motion to Dismiss), because it could “infer that a suspect who was stopped and immobilized was
not actively threatening the Officers or resisting arrest.” Doc. no. 24 (Memorandum Opinion and
Order Denying Motion to Dismiss), at 12. However, this holding was based on “[p]laintiff’s terse
statement of facts,” id. at 5 (alterations supplied), and, as this court noted, “the facts that come to
light in discovery may ultimately tell a different tale.” Id. at 12.
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:33-5:44.
[the suspect] had clearly given himself up,” id. at 2022 (alterations supplied), there
was no indication in this case that the first round of shots had incapacitated Jones. In
fact, he sat up behind the wheel of his truck while it still was running. There also was
no indication that Jones had “given himself up.”
Other factors support Officer Maher’s use of deadly force.
Even though Maher did not give a verbal warning of his intent to use deadly
force if Jones did not surrender, courts “have ‘decline[d] . . . to fashion an inflexible
rule that, in order to avoid civil liability, an officer must always warn his suspect
before firing . . . .’” Penley v. Eslinger, 605 F.3d 843, 854 n.6 (11th Cir. 2010)
(quoting Carr v. Tatangelo, 338 F.3d 1259, 1269 n.19 (11th Cir. 2003)) (alteration in
original). At the time Maher began firing his initial volley of shots, Jones’s truck had
just rolled off Officer Shipp’s hood.80 In the time it would have taken Maher to give
Jones a verbal command, Jones could have backed his truck over the hood of Officer
Shipp’s patrol car a second time, and seriously injured or killed him. Jones also could
have driven away.
Plaintiff has not established that Officer Maher violated the Fourth Amendment.
Was the constitutional right that Maher allegedly violated “clearly
Even if this court had found a violation of the Fourth Amendment, Maher still
Exhibit J (Shipp Dash Cam), on file with the clerks office, at 5:33.
would be entitled to summary judgment because plaintiff has not demonstrated that
Maher violated a “clearly established” constitutional right.
In determining whether a constitutional right is clearly established, “‘the salient
question is whether the state of the law [at the time of the unconstitutional act] gave
respondents fair warning that their alleged treatment of [the plaintiff] was
unconstitutional.’” Williams v. Consolidated City of Jacksonville, 341 F.3d 1261,
1270 (11th Cir. 2003) (alterations in original) (quoting Hope, 536 U.S. at 741). The
Supreme Court has rejected the requirement that the facts of previous cases must
always be “materially similar” to those facing the plaintiff. Hope, 536 U.S. at 739.
Instead, for a constitutional right to be “clearly established,”
its contours “must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say
that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, see Mitchell [v.
Forsyth, 472 U.S. 511,] 535, n.12, 105 S. Ct. 2806, 86 L. Ed. 2d 411; but
it is to say that in the light of pre-existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
97 L. Ed. 2d 523 (1987).
Hope, 536 U.S. at 739 (emphasis supplied, alteration in original).
As the Eleventh Circuit has observed, there are various ways in which an officer
may be placed on “fair warning” that his conduct in specific circumstances may
violate the constitution or federal law.
First, the words of the pertinent federal statute or federal
constitutional provision in some cases will be specific enough to
establish clearly the law applicable to particular conduct and
circumstances to overcome qualified immunity, even in the total absence
of case law. This kind of case is one kind of “obvious clarity” case. For
example, the words of a federal statute or federal constitutional provision
may be so clear and the conduct so bad that case law is not needed to
establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for
example, the Fourth Amendment on its face, we then turn to case law.
When looking at case law, some broad statements of principle in case
law are not tied to particularized facts and can clearly establish law
applicable in the future to different sets of detailed facts. See Marsh [v.
Butler County], 268 F.3d [1014,] 1031-32 n.9 [(11th Cir. 2001)]. For
example, if some authoritative judicial decision decides a case by
determining that “X Conduct” is unconstitutional without tying that
determination to a particularized set of facts, the decision on “X
Conduct” can be read as having clearly established a constitutional
principle: put differently, the precise facts surrounding “X Conduct” are
immaterial to the violation. These judicial decisions can control “with
obvious clarity” a wide variety of later factual circumstances. These
precedents are hard to distinguish from later cases because so few facts
are material to the broad legal principle established in these precedents;
thus, this is why factual differences are often immaterial to the later
decisions. But for judge-made law, there is a presumption against wide
principles of law. And if a broad principle in case law is to establish
clearly the law applicable to a specific set of facts facing a governmental
official, it must do so “with obvious clarity” to the point that every
objectively reasonable government official facing the circumstances
would know that the official’s conduct did violate federal law when the
Third, if we have no case law with a broad holding of “X” that is
not tied to particularized facts, we then look at precedent that is tied to
the facts. That is, we look for cases in which the Supreme Court or we,
or the pertinent state supreme court has said that “Y Conduct” is
unconstitutional in “Z Circumstances.” We believe that most judicial
precedents are tied to particularized facts and fall into this category. . .
. When fact-specific precedents are said to have established the law, a
case that is fairly distinguishable from the circumstances facing a
government official cannot clearly establish the law for the
circumstances facing that government official; so, qualified immunity
applies. On the other hand, if the circumstances facing a government
official are not fairly distinguishable, that is, are materially similar, the
precedent can clearly establish the applicable law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original,
alterations supplied). See also Ashcroft v. al-Kidd, — U.S. —, 131 S. Ct. 2074, 2083
(2011) (“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.”).
It should also be emphasized that it is the plaintiff who bears the burden of
establishing that the constitutional right at issue was clearly established on the date of
its alleged violation. Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010).
In light of Plumhoff, and other cases involving police use of deadly force to stop
a fleeing felon involved in a high speed car chase, see, e.g., Scott, 550 U.S. at 381, and
Brosseau v. Haugen, 543 U.S. 194, 201 (2004), this is not an “obvious clarity” case.
Thus, the court must turn to case law to determine whether the purported
constitutional violation was clearly established at the time Officer Maher employed
deadly force against Chris Jones.
Plumhoff “makes plain that as of [July 18, 2004] — the date of the events at
issue in that case — it was not clearly established that it was unconstitutional to shoot
a fleeing driver to protect those whom his flight might endanger.” Plumhoff, 134 S.
Ct. at 2023.
To defeat immunity here, then, [plaintiff] must show at a minimum either
(1) that [Officer Maher’s] conduct in this case was materially different
from the conduct in [Plumhoff] or (2) that between [July 18, 2004], and
[March 21, 2011], there emerged either “‘controlling authority’” or a
“robust ‘consensus of cases of persuasive authority,’” al-Kidd, supra, at
2084 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 143
L. Ed. 2d 818 (1999); some internal quotation marks omitted), that
would alter [the court’s] analysis of the qualified immunity question.
Plumhoff, 134 S. Ct. at 2023 (alterations supplied).
Plaintiff does not contend that controlling authority emerged between July 18,
2004, the date of the events at issue in Plumhoff, and March 21, 2011, the date on
which Officer Maher fatally wounded Chris Jones. Instead, she argues that Maher’s
conduct was different from the conduct at issue in Plumhoff, because Chris Jones was
not fleeing at the moment Maher fired his final two shots. Plaintiff contends that the
facts of this case are more like those of Smith v. Mattox, 127 F.3d 1416 (11th Cir.
1997), an excessive-force case in which the Eleventh Circuit found that an officer was
not entitled to qualified immunity. In the latter case,
[t]he plaintiff, Anthony Lee Smith, went to visit his mother one
afternoon at her house in a dangerous neighborhood in Tuscaloosa,
Alabama. During the visit, he joined his teenage sister and several
cousins at a picnic table in his mother’s front yard. Smith held a baseball
bat while sitting at the table.
On the same day, unbeknownst to Smith, a Tuscaloosa-area drug
task force planned to stage a reverse-sting operation to crack down on
drug sales on the street where Smith’s mother lived. By coincidence,
before the reverse-sting operation began, the police received a tip that
three black males, whose clothing the informant described and two of
whose names the informant provided, had cocaine in the front yard of
Smith’s mother’s house. The sting team accordingly stopped at the
house and prepared to investigate.
The defendant Mattox, who was part of the team, entered Smith’s
mother’s front yard. Mattox did not identify himself as a police officer,
although his clothing betrayed him as such. Upon seeing Mattox, Smith
raised the baseball bat in a threatening posture. Mattox drew his gun to
ready position and ordered Smith to drop the bat. Smith did not, and
Mattox threatened to shoot. Smith then dropped the bat and ran through
the backyard, down a driveway, and into a street running behind the
house. Once in the street, Smith turned around, thinking that the threat
from Mattox had passed, and started back toward the house. Meanwhile,
however, Mattox had pursued Smith to the driveway, and other officers
had also pulled up on the driveway side of the house.
In the driveway, Smith came face to face with Mattox. After first
pretending to run again, Smith docilely submitted to arrest upon
Mattox’s request for him to “get down.” Once Smith was on the ground,
Mattox put his knee on Smith’s lower back to prepare to handcuff him.
In the process of pulling Smith’s left arm behind his back to fasten the
handcuffs, Mattox put Smith’s forearm to a position that caused Smith
discomfort. Smith complained, and then with a grunt and a blow — but
no sign of anger — Mattox broke Smith’s arm.
Id. at 1417-18 (alteration supplied). Based upon these facts, the Eleventh Circuit held
that, even though some use of force was reasonable,
assuming as we must that Smith was offering no resistance at all, the
considerable effort and force inferable from the grunt, Smith’s sensation
of a blow, and the broken arm was obviously unnecessary to restrain
even a previously fractious arrestee. We thus conclude that this case falls
within the slender category of cases in which the unlawfulness of the
conduct is readily apparent even without clarifying caselaw.
Id. at 1420 (emphasis in original).
This court disagrees with plaintiff. The facts of this case are not at all like those
at issue in Smith. Here, there was no indication that Chris Jones had given himself up,
or that he was incapacitated, at the moment Maher fired his final two shots.81 Indeed,
in Smith, the plaintiff had docilely submitted to arrest by lying face down on the
ground. Moreover, he had abandoned his deadly weapon (the baseball bat). In
contrast, Chris Jones suddenly sat up behind the steering wheel of his truck while its
engine was still running. “Under the circumstances at the moment when the shots
were fired, all that a reasonable police officer could have concluded was that [Jones]
was intent on resuming his flight and that, if he was allowed to do so, he would once
again pose a deadly threat for others on the road.” Plumhoff, 134 S. Ct. at 2021-22
For these reasons, even if it were to be determined that Officer Maher’s final
two shots violated Chris Jones’s Fourth Amendment right to be free of unreasonable
force, Maher still would be entitled to summary judgment based on the doctrine of
qualified immunity because plaintiff has not demonstrated that the right was “clearly
established” on the date the deadly force was applied.
See supra Part IV.A.1.
Wrongful Death Claim
The remaining claim is plaintiff’s supplemental state-law claim for wrongful
death. In cases where the court’s jurisdiction is based solely upon a federal question,
the district court has discretion to entertain state claims that are supplemental to the
federal claim. See 28 U.S.C. § 1367(a). The district court may decline to exercise
supplemental jurisdiction when:
the claim raises a novel or complex issue of state law,
the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
the district court has dismissed all claims over which it has
original jurisdiction, or
in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis supplied). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity
— will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988).
Here, plaintiff’s federal claim has been eliminated. Accordingly, this court
declines supplemental jurisdiction over the remaining state law claim, and exercises
its discretion to dismiss that claim, but without prejudice to plaintiff’s right to reassert
it in an appropriate state forum, if she desires to do so.
A separate order, consistent with this memorandum opinion, will be entered
DONE this 28th day of October, 2014.
United States District Judge
Written Report of Daniel Busken
(Doc. no. 41-5)
Events Preceding the Use of Force
I reviewed video of this incident many times and was “troubled” by what I watched.
Throughout the incident, the police officers used tactics bringing them too close to
Jones. Albertville Police Department policy (p. 50) clearly defines Reaction Time and
Reaction Time: the officer must consider that action is faster than
reaction; thus the officer must pay attention to the above factors
when preparing for a course of action.
Reactionary Gap: officers should be cognizant of, and utilize a
reactionary gap during all police contacts. The reactionary gap is
defined as a safety zone between the officer and subject which
affords the officer more time to react to aggression:
The average distance is six feet or more;
Varies with type of weapon the subject may possess;
Busken’s report does not include the “above factors” mentioned in Section E of the
“Variables that Affect the Force Continuum” in the Albertville Police Department Policies and
Procedures Manual. Those factors are:
Officer/Subject: size, physical abilities;
Environment Conditions: such as close or confined areas; [and]
Nature of contact[.]
Doc. no. 40 (Albertville Police Department Policies and Procedures Manual), at ECF 76 (alterations
The officer always has two “Reactionary Options”
Penetrate the gap to attempt control;
Disengage to create distance.
Literature on emergency vehicle operations also identifies the need for reaction time
and a reactionary gap during a police pursuit. According to Beach, Morris & Smith
(1993), “Safety Considerations When Pursuing — Always leave yourself an out. Try
to maintain a space cushion around your vehicle. Your following distance should
increase as speeds increase. A gap of approximately 4 seconds should allow you to
maintain contact safely.” According to Albertville’s Lethal Force policy (p. 49),
“Lethal Force is considered a measure of “Last Resort” [sic]. Had the officers allowed
more distance between them and Jones they would have probably had other options.
Officer Isbell’s police vehicle was too close to Jones’ truck during the pursuit. This
prohibited Officer Isbell from reacting to Jones’ maneuvers and avoiding a collision.
Later in the incident, when Jones stopped the truck, Officer Shipp was too close to
Jones’ truck, leaving Shipp with no Reactionary Gap. Some may argue this portion
of policy is not relevant during a vehicular pursuit; however, the Albertville policy
clearly states Reaction Time and Reactionary Gap are relevant “during all police
The primary question regarding a police pursuit is: Does the need to apprehend the
suspect outweigh the danger associated with continuing the pursuit? Three Albertville
police officers responded to the scene of this incident. I believe one of the officers
should have stayed at the scene and gathered information. This opinion is reinforced
by a statement from Officer Shipp’s deposition, “We pursued him in an attempt to get
him to stop and try to figure out what was going on at the residence” (p. 19). This
officer could have identified Jones and identified the location of his residence. These
details could have been provided via radio to the two pursuing officers. The officer
at the scene would have also confirmed Jones was impaired/intoxicated, which may
have explained Jones’ erratic driving behavior. Additionally, this officer, through the
course of gathering details, may have learned Jones was no longer armed with the
knife. During the pursuit, the dispatcher is heard saying, “We got the caller on the line
— we know she’s ok.” All of this information would have been helpful for the
pursuing officers and any supervisory personnel monitoring the pursuit with regard
to decisions about continuing the pursuit and actions leading to the use of lethal force.
Actions of Offender
Albertville Police Department policy regarding Use of Lethal Force (p. 49) allows
Lethal Force as a measure of “Last Resort”.
AUTHORIZED USE OF LETHAL FORCE
To protect the officer or another from what is reasonably
believed to be an immediate threat of death or serious
Busken’s report does not include the full text of Section A of the “Lethal Force
Procedures” in the Albertville Police Department Policies and Procedures Manual. That Section
AUTHORIZED USE OF LETHAL FORCE
The use of Lethal force is considered a measure of “Last Resort” as defined
under section II.E. and is limited to the following situations:
To protect the officer or another from what is reasonably
believed to be an immediate threat of death or serious
To prevent the escape of a subject who is fleeing from an
inherently violent felony crime, and the officer has probable
cause to believe that the subject poses a significant threat of
death or serious physical injury to the officer or others;
Whenever any one of the two conditions described above are
present, where feasible, officers shall identify themselves and
provide a warning before the force is applied.
Doc. no. 40 (Albertville Police Department Policies and Procedures Manual), at ECF 75. The court
cannot locate “section II.E.” in the record.
Review of the video from Officer Shipp’s patrol vehicle shows Jones back his truck
into the front of Shipp’s vehicle. While the police vehicle is stationary, the truck
continues and the rear of the truck “rides up” slightly onto the push-bumper and hood
of Shipp’s patrol car. The push bumper stopped the backward motion of Jones’ truck,
disabled Jones’ truck preventing it from continuing its backward movement, and
ended the immediate threat of death or serious physical injury. Jones’ truck appears
to be stuck on the push bumper preventing the truck from moving backward any
further. Both Officer Shipp and Officer Maher acknowledge this in depositions:
All right. Was he stuck on your car?
He wasn’t going anywhere?
Didn’t seem to be (p. 42),
Do you know if the vehicles ever did become hooked together?
They did (p. 84).
But it had gone forward from its furthest point back?
The best perspective that I had of it, which was sitting next to
vehicle at the time that the actual shooting occurred, it appeared
to me that the push bumper had actually pushed the truck forward
Was it — by the time, though, that you’re out of the vehicle, is it
stuck on the push bumper?
Yes, it is (p. 25).
Jones’ truck then moves forward disengaging contact with Shipp’s vehicle. Shipp’s
patrol car video shows the white (reverse gear) lights illuminated on Jones’ truck as
Jones backed into the front of Shipp’s patrol car; however, as Jones’ truck moves
forward the white lights go off indicating the truck is no longer in reverse gear.
Actions of Officer(s)
ABI Agent Investigative Summary File Number 2C-0486-96-2011 prepared by Agent
Terry Thomas includes a statement attributed to Shipp. According to Agent Thomas,
Shipp stated he shot until the truck stopped coming toward him (p. 1). However,
Shipp’s in-car camera clearly shows that Officer Shipp begins the use of lethal force
(shooting) after the push bumper disables the truck, after Jones’ truck is disengaged
from the front of the patrol vehicle, and after the immediate threat of death or serious
This raises several questions:
Did Officer Shipp have other options he could have used prior to using lethal
Again, according to Albertville policy, Shipp could “Disengage to create distance”.
This then “affords the officer more time to react to aggression” and in my opinion
gives the officer(s) time to contemplate options other than Lethal Force.
Could Officer Shipp and Officer Maher have used some other technique to end
this encounter without using Lethal Force?
According to training records provided by the Albertville Police Department, both
Shipp and Maher attended training in Pursuit Termination Techniques (Source —
Training Certificates dated August 12, 2010). Although the description of this course
and course curriculum was not included in the materials I reviewed, I assume this
course would have provided participants with options other than Lethal Force to end
this sort of encounter. In his deposition (p. 22), Officer Shipp indicated he has an
understanding of the unpredictable nature associated with pursuits when he said,
“Typically they end with the offender either wrecking or running out of gas.
Occasionally they just decide they want to pull over, but typically they wreck for the
most part, probably.”
Some of the other options available to Officer(s) Shipp and Maher would have been:
Disengage to create distance.
Exit police vehicles and take a cover position.
Order Jones to exit the truck.
Order Jones to show his hands.
Order Jones to throw his keys out of the vehicle.
Officer Shipp was aware of these options according to his deposition (p. 42-43).
Shipp was asked, what would your training teach you to do when, at the end of a
chase, a vehicle is disabled now and can’t go anywhere? Shipp replied, “You either
make verbal communications with the suspect and order them to get out of the vehicle.
Or you can approach the vehicle and remove the suspect from the vehicle that way.”
Was the use of Lethal Force by Officer Shipp reasonable?
I do not think the lethal force used by Officer Shipp was reasonable because Jones
backed into the strongest part of the police car. Officer Maher reinforced this opinion
in his deposition. “You cannot disable a vehicle by shooting at the engine block, it’s
the strongest part on the vehicle” (p. 58). Jones backed into the engine compartment.
The front of Shipp’s police vehicle was fortified by what is referred to as a “push
bumper”. Shipp was aware of the protection provided by a push bumper. In his
deposition, referring to the push bumper, Shipp said, “It’s a metal push bar that we use
to — that kind of protects the front end of the car” (p. 84). A manufacturer website,
Go Rhino — Public Safety Division (www.gorhinopd.com/testimonials.aspx), offers
several testimonials of police officers throughout the United States. These stories
prove the push bumper absorbs a lot of the impact, allowed an officer to walk away
from a head-on collision, and another push bumper saved the officer from serious
injury or death.
I do not think the lethal force used by Officer Shipp was reasonable because of
conflicting statements in his deposition. Shipp was asked, was the truck coming at
you when you shot towards it? Shipp responded, “Yes, sir” (p. 34). Shipp’s in-car
camera clearly shows that Officer Shipp begins the use of lethal force (shooting) after
the push bumper disables the truck, after Jones’ truck is disengaged from the front of
the patrol vehicle, and after the immediate threat of death or serious injury subsided.
Shipp was asked about this later in the deposition (p. 38), [“]So if the video is correct,
you didn’t shoot until he put it back in drive and went forward, is that right?[”] Shipp
replied, “Seems to be per the video, yes, sir.”
Was the Use of Lethal Force by Officer Maher reasonable?
I do not think Officer Maher’s use of lethal force was reasonable because, according
to Maher’s deposition (p. 21), the sole reason Maher fired at Jones was because Maher
believed Jones presented a threat to Officer Shipp. Jones was backing his truck up
onto Shipp’s police vehicle. Maher’s account is contrary to the video evidence.
Shipp’s in-car camera clearly shows Officer Maher begin the use of lethal
force (shooting) after the truck is disabled by the push bumper, after the truck is
disengaged from the front of the patrol vehicle, and after the immediate threat of death
or serious injury subsided.
I also do not think the lethal force used by Officer Maher was reasonable because, as
noted earlier in this report, Albertville Police Department policy regarding Use of
Lethal Force (p. 49) only allows Lethal Force as a measure of “Last Resort”
AUTHORIZED USE OF LETHAL FORCE
To protect the officer or another from what is reasonably
believed to be an immediate threat of death or serious
Apparently, Officer Maher began his use of lethal force, not because Maher perceived
any threat posed by Jones, but because he heard gunshots behind him and Maher
thought the shots were coming from Officer Shipp (ABI Agent Investigative Summary
File Number 2C-0486-96-2011 p. 2). During the ABI investigation, the only
justification Maher provided for the final two shots Maher fired as Maher approached
the driver’s door of Jones’ truck was because the driver (Jones) tried to sit back up.
Maher was asked about this in his deposition (p. 37). Maher answered, “Yes” to the
question, “You shot him because he was still alive?[”] This was not a “split second”
decision according to Maher’s deposition (p. 53), “His life was in definite danger. I
See supra note 84.
had about three seconds to make that decision and I made [the] decision based on
During Maher’s deposition (p. 37), Maher cites his training as justification for his use
of lethal force.
“We are taught in any circumstances whatsoever involving deadly force
to eliminate the threat. You don’t shoot to wound, you don’t shoot to do
anything along those lines over there. We are academy trained and
ever[y] bit of training that I’ve ever had to shoot to stop the threat.”
Again, I would emphasize I do not think Maher’s use of lethal force was reasonable
because Shipp’s in-car camera clearly shows Officer Maher begin the use of lethal
force (shooting) after the truck is disabled, after the truck is disengaged from the front
of the patrol vehicle, and after the immediate threat of death or serious injury
Outcome with regard to Department Policy and Relevant Laws
Members of Albertville’s Firearms Discharge Review Committee were in unanimous
agreement that the actions of both Officer Shipp and Officer Maher are justified and
are deemed In Policy (Committee Findings dated March 24, 2011)[.] Although I
understand the points noted by this Committee in their report, I believe the findings
are debatable, based upon opinions noted previously in my report. Furthering my
opinion these results are debatable is a recent case from Garland, Texas. According
to the Dallas Morning News, a Garland, Texas police officer was fired following an
investigation into an August 31, 2012 chase in which the officer shot 41 times at a
suspect the officer believed was armed. The Garland officer believed the suspect
posed a threat, however, the suspect was unarmed.
The use of deadly force to stop Jones from continuing to back the truck over Officer
Shipp’s patrol car would have been reasonable. However, the push bumper disabled
Jones’ truck, stopped the backward motion of Jones’ truck, and ended the immediate
threat of death or serious physical injury. The truck then moved forward and
disengaged from Shipp’s patrol vehicle furthering my belief the immediate threat of
death or serious physical injury subsided. Additionally, the white (reverse gear) lights
go off indicating the truck is no longer in reverse gear. We have no way of
determining what Jones’ intentions were at this point, but one thing is certain, Jones
was not provided the opportunity to surrender.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?