Collar et al v. Austin

Filing 43

ORDER granting 33 Motion for Leave to File Sur-Reply; denying 35 Motion to Strike ; granting 21 Motion for Relief Under Rule 56(d). The Magistrate Judge will enter an order establishing a time frame for the discovery. After the discovery is completed, the Court will enter a summary judgment briefing schedule. Signed by Chief Judge William H. Steele on 2/5/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REED COLLAR, et al., etc.,
Plaintiffs,
v.
TREVIS AUSTIN, etc.,
Defendant.

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)
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) CIVIL ACTION 14-0349-WS-B
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ORDER

This matter is before the Court on the plaintiffs’ motion for relief under
Rule 56(d). (Doc. 21). The parties have filed briefs and other materials in support
of their respective positions, (Docs. 21, 23, 31-33), and the motion is ripe for
resolution.1
The plaintiffs’ decedent (“Collar”) was a student at the University of South
Alabama (“the University”) when, on the night of October 5-6, 2012, he was shot
and killed by the defendant, a police officer employed by the University. Count
One, brought pursuant to Section 1983, claims the defendant used excessive force
in violation of the Fourth and Fourteenth Amendments. Count Two is a claim for
wrongful death under Alabama law. (Doc. 1).
Shortly after answering the complaint, the defendant filed a motion for
summary judgment, asserting qualified immunity as to the federal claim and stateagent immunity as to the state claim. (Doc. 7). At the same time, the defendant
filed a motion to stay all proceedings, including discovery, pending a ruling on his
motion for summary judgment. (Doc. 10). After full briefing, the Court denied

1

The defendant’s motion for leave to file a sur-reply, (Doc. 33), is granted. The
plaintiffs’ motion to strike the defendant’s motion, (Doc. 35), is denied.

the motion to stay. (Doc. 18).2 The defendant took the position that discovery is
never allowed before ruling on a motion raising qualified immunity, but the Court
concluded that pre-ruling discovery is precluded only when the defendant’s
motion denies that the plaintiff’s version of the facts (as measured by the
allegations of the complaint) reflects the violation of a clearly established
constitutional right. Because the defendant’s motion for summary judgment does
not assert that the plaintiffs’ version of the facts is fatally deficient, and instead
maintains only that his version of the facts negates the violation of a clearly
established constitutional right, discovery prior to resolution of the motion is not
precluded. (Id. at 2-4).
Without filing a motion to reconsider, the defendant argues that the two
Supreme Court cases on which the Court relied actually stand for the proposition
that, whenever a defendant on motion for summary judgment asserts qualified
immunity, the Court is required, sua sponte, to determine whether the allegations
of the complaint reflect the violation of a clearly established right. (Doc. 23 at 36). The Court cannot agree.
The Supreme Court in Anderson v. Creighton, 483 U.S. 635 (1987),
directed that, on remand, “it should first be determined whether the actions the
[plaintiffs] allege [the defendant] to have taken are actions that a reasonable
officer could have believed lawful.” Id. at 646 n.6. The defendant in Anderson,
however, had filed “a motion to dismiss or for summary judgment,” id. at 637, so
it is clear he had in fact challenged the sufficiency of the complaint. Because he
had done so, it was of course necessary for the trial court on remand to determine
whether the allegations of the complaint reflected the violation of a clearly
established right.
In Crawford-El v. Britton, 523 U.S. 574 (1998), the Court stated that, “if
the defendant does plead the immunity defense, the district court should resolve
2

Collar v. Austin, 2014 WL 4854850 (S.D. Ala. 2014).

2

that threshold question before permitting discovery.” Id. at 598. The defendant in
Crawford-El, however, had prevailed on a motion to dismiss,3 so again it is clear
that he had actually challenged the sufficiency of the complaint; there is thus no
reason to believe the Supreme Court was requiring district courts to determine
whether the complaint reflects the violation of a clearly established right even in
the absence of a request to do so. On the contrary, immediately after identifying
the district court’s task as one of “determin[ing] whether, assuming the truth of the
plaintiff’s allegations, the official’s conduct violated clearly established law,” the
Court promptly dropped a footnote reminding readers that, “[i]f the district court
enters an order denying the defendant’s motion for dismissal or summary
judgment,” interlocutory appeal is available. Id. at 598 & n.19. The Supreme
Court thus clearly contemplated pre-discovery evaluation of the complaint only
when the defendant’s dispositive motion requests it.
Such a procedure is fully consistent with Circuit precedent, which places
burdens on a defendant desiring qualified immunity. “Qualified immunity is an
affirmative defense that may be waived.” Bogle v. McClure, 332 F.3d 1347, 1355
n.5 (11th Cir. 2003). And although “qualified immunity can be pled at various
stages in a case,” including at trial or in a motion to dismiss, for judgment on the
pleadings or for summary judgment, “all these pleadings must conform to the
Federal Rules of Civil Procedure.” Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th
Cir. 2002). Thus, in Skrtich, defendants who did not raise qualified immunity
until their third motion to dismiss waived the right to have qualified immunity
considered at that stage. Id. at 1306-07. As these cases demonstrate, a defendant
cannot receive the benefit of qualified immunity without asking for it, at the
proper time and in the proper manner.
Even more specifically, “[t]here is no burden upon the district court to
distill every potential argument that could be made based upon the materials
3

Crawford-El v. Britton, 93 F.3d 813, 815 (D.C. Cir. 1996) (en banc), vacated
and remanded, 523 U.S. 574 (1998).
3

before it on summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995), and this rule extends to qualified immunity
arguments. Gennusa v. Canova, 748 F.3d 1103, 1116-17 (11th Cir. 2014) (trial
court was not required to address an exigent circumstances argument superficially
mentioned in support of a qualified immunity defense) (citing Resolution Trust).
Contrary to these opinions, the defendant here insists that the Court must address
an argument that is not merely indiscernible in, but that is utterly absent from, his
motion for summary judgment. Beyond his overly expansive reading of Anderson
and Crawford-El, the defendant offers no justification for ignoring this clear
appellate authority.
In his opposition to Collar’s Rule 56(d) motion, as in his reply brief in
support of his motion to stay, the defendant asserts that the complaint fails to
allege acts which, if true, violated Collar’s clearly established rights. (Doc. 16 at
15; Doc. 23 at 6 & n.2). The defendant argues that these assertions compensate
for his failure to make such an argument on motion for summary judgment and
thereby compel the Court to evaluate the complaint before considering discovery.
(Id.). The defendant cites no authority permitting him to inject this issue by such a
procedure, and the Court is dubious, especially as Skrtitch’s listing of pleadings in
which qualified immunity may properly be asserted does not include anything
remotely resembling the defendant’s filings. Nevertheless, because the plaintiffs
do not disagree with the defendant’s contention but instead defend the adequacy of
their complaint,4 the Court considers whether that pleading alleges facts which, if
correct, reflect that the defendant violated clearly established law. In making this
assessment, the Court “accept[s] the factual allegations in the complaint as true
4

“[T]he initial issue before the Court [is]: do Collar’s allegations establish a
violation of his rights in the context of the facts at bar (as alleged by Collar), and was that
right (in the context of these facts) clearly established at the time?” (Doc. 31 at 3).
Because the plaintiffs “have established by allegations of facts which must be accepted as
true for this analysis the violation of a known constitutional right[,] [t]he issue now is
what discovery will be permitted to allow the Collars an opportunity to prove their case.”
(Id. at 11).
4

and views them in the light most favorable to” the plaintiffs. Saunders v. Duke,
766 F.3d 1262, 1266 (11th Cir. 2014); accord St. George v. Pinellas County, 285
F.3d 1334, 1337 (11th Cir. 2002).
In pertinent part, the complaint alleges that Collar ingested a foreign
substance that caused him to become “confused, disoriented and agitated.” In this
state, Collar removed all his clothes and, disrobed and obviously unarmed, sought
to gain access to the campus police station to seek help for his distressing
condition, first by hitting the door and then by striking the window. Collar then
walked away from the building; no one else was around. The defendant exited the
police station with service weapon drawn and confronted Collar, who was five
inches shorter than the defendant and 50 pounds lighter. The defendant’s firearm
remained trained on Collar throughout their encounter. (Doc. 1, ¶¶ 16, 17, 21-24,
27, 33). “At no point did Gilbert Collar threaten to harm Defendant Austin, or
attempt to grab Defendant Austin’s weapon, or attempt to touch or strike
Defendant Austin.” (Id., ¶ 34). “Nevertheless, when Gilbert Collar was yards
away from Defendant Austin and not evidencing any overt, aggressive actions,
Defendant Austin … pointed his weapon at Gilbert Collar’s torso and fired
directly into his body essentially at point-blank range.” (Id., ¶¶ 35-36). When the
defendant shot Collar, he knew or objectively should have known that Collar
posed no imminent threat of serious bodily injury or death to the defendant or
others. (Id., ¶ 58.b, .d).
The defendant asserts he shot Collar while “attempting to arrest” him.
(Doc. 31 at 9). “Fourth Amendment jurisprudence has long recognized that the
right to make an arrest … necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.” Jean-Baptiste v. Gutierrez, 627
F.3d 816, 821 (11th Cir. 2010) (internal quotes omitted). However, “[a]ny use of
force must be reasonable.” Id.
“Reasonableness is dependent on all the circumstances that are relevant to
the officer’s decision to use deadly force, including [1] the seriousness of the
5

crime, [2] whether the suspect poses an immediate danger to the officer or others,
[3] whether the suspect resisted or attempted to evade arrest, and [4] the feasibility
of providing a warning before employing deadly force.” Jean-Baptiste, 627 F.3d
at 821. “Other considerations are [5] the need for the application of force, [6] the
relationship between the need and the amount of force used, and [7] the extent of
the injury inflicted.” Saunders, 766 F.3d at 1267 (internal quotes omitted).
The defendant does not identify any crime for which he sought to arrest
Collar, and the only apparent candidates are public intoxication and indecent
exposure.5 Indecent exposure is a misdemeanor, while public intoxication is a
mere violation,6 so the offenses rank low on the scale of seriousness.7 The second
factor looks for a threat of “serious physical harm,”8 and the complaint negates
any immediate danger of serious physical harm to the defendant or anyone else.
(Doc. 1, ¶¶ 24, 34-35). As for the third and fourth factors, the complaint does not
indicate that Collar resisted or evaded arrest, and it does not indicate that the
defendant gave a warning before discharging his firearm or that such a warning

5

Disorderly conduct and resisting arrest also have been considered, but the
allegations of the complaint would not support either charge. At any rate, both are
misdemeanors, see Ala. Code §§ 13A-10-41, -11-7, and thus, as discussed in text, of
minor severity.
6

Ala. Code §§ 13A-1-2(16), -5-7, -6-68, -11-10.

7

See, e.g., Galvez v. Bruce, 552 F.3d 1238, 1243 (11th Cir. 2008) (petit theft and
resisting arrest without violence “were not severe” as they “are both misdemeanors”);
Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008) (“The crime of misdemeanor
obstruction is a crime of ‘minor severity’ for which less force is generally appropriate.”);
Davis v. Williams, 451 F.3d 759, 764, 767 (11th Cir. 2006) (neither disorderly conduct
nor obstruction of justice is a “serious crime”); Vinyard v. Wilson, 311 F.3d 1340, 1347
(11th Cir. 2002) (the plaintiff’s “crimes, disorderly conduct and obstruction, were of
minor severity”).
8

Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010).

6

was infeasible. The fifth factor is redundant with the first three.9 The extent of
injury inflicted – death – is the maximum possible,10 and the relationship between
the need for force (non-existent or nearly so) and the amount of force employed
(deadly) is patently and grossly disproportionate.11
The allegations of the complaint, in short, accepted as true for present
purposes, reflect that the defendant used deadly force to arrest an individual
known to be an unarmed, nondangerous, unresisting misdemeanant. The question
becomes whether it was clearly established in October 2012 that such conduct was
unconstitutional. Plainly it was.
Except in rare instances when the very language of a constitutional or
statutory provision is sufficiently clear and specific, a plaintiff must rely on
Supreme Court and Eleventh Circuit case law pre-dating the challenged conduct.
E.g., Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc). “We do
not always require a case directly on point …; a constitutional rule already
identified in the decisional law may apply with obvious clarity to the specific
conduct in question, even though the very action in question has not previously
been held unlawful.” Gennusa, 748 F.3d at 1113 (internal quotes omitted).
“A police officer may not seize an unarmed, nondangerous suspect by
shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). “Other cases
confirm that non-violent suspects, accused of minor crimes, who have not resisted
arrest … are victims of constitutional abuse when police used [sic] extreme force
9

Supreme Court jurisprudence “dictates unambiguously that the force used by a
police officer in carrying out an arrest must be reasonably proportionate to the need for
that force, which is measured by the severity of the crime, the danger to the officer, and
the risk of flight.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002).
10

“The intrusiveness of a seizure by means of deadly force is unmatched.”
Tennessee v. Garner, 471 U.S. 1, 11 (1985).
11

“When the suspect poses no immediate threat to the officer and no threat to
others, the harm resulting from failing to apprehend him does not justify the use of deadly
force to do so.” Id.
7

to subdue them.” Fils v. City of Aventura, 647 F.3d 1272, 1289 (11th Cir. 2011).
As these and similar statements demonstrate, it was clearly established in October
2012 that arresting an unarmed, nondangerous, unresisting misdemeanant by
killing him – which is what the complaint alleges – violates the Fourth
Amendment.
The defendant does not seriously disagree. On the contrary, he concedes
that the complaint “perhaps” or “might” reflect a violation of Collar’s clearly
established constitutional rights. (Doc. 23 at 12-13). The defendant argues,
however, that the Court “can and should” also consider a video taken from outside
the police station, which “obliterates” the complaint’s allegation that Collar posed
no immediate threat of serious physical harm. (Id. at 13-14).
The defendant has not explained how the Court may properly consider the
video in assessing the adequacy of the complaint. However, because the plaintiffs
do not oppose such consideration and instead argue that the video confirms the
complaint’s allegations, (Doc. 31 at 6, 8, 9), the Court assesses its impact.12
According to the defendant, the video shows that Collar “engaged in a
series of fighting poses and quickly charged after [the defendant,] who was
retreating with a firearm pointed at Collar, and that Collar was very aggressive and
violent.” (Doc. 23 at 8 n.3). He continues that Collar “aggressively charged[d]”
him and got “very close” to him, “within arm’s length.” (Id. at 12-13). In
summary, “the video shows a violent, unpredictable, drug-crazed, noncompliant
Collar charging at an armed officer.” (Id. at 14). Because “a video recording of
an incident makes a party’s contrary statements and testimony incredible,” (id. at 8
12

The Court notes the complaint’s allegation that Collar’s “actions and demeanor
in the moments leading up to his death as depicted by the video recordings make clear to
any objective observer that he was in need of help at that time.” (Doc. 1, ¶ 20).
Although the video is not attached as an exhibit to the complaint so as to make it part of
the complaint under Rule 10(c), it may be that the complaint’s reliance on the video
implicates the “incorporation by reference” doctrine, see Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002), or some analogue thereof. The plaintiffs’ willingness to have the
video considered renders it unnecessary for the Court to identify which legal principle, if
any, would justify such consideration over objection.
8

n.7), the defendant concludes that the plaintiffs “cannot dispute these facts with
contrary allegations.” (Id. at 12).
The defendant has overstated both the contents of the video and the legal
standard for evaluating it. As stated in the case on which the defendant relies, the
rule is that, “‘where an accurate video recording completely and clearly
contradicts a party’s testimony, that testimony becomes incredible.’” Windham v.
City of Fairhope, 20 F. Supp. 3d 1323, 1329 (S.D. Ala. 2014) (quoting Morton v.
Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013)). To qualify under this rule, the
video must “so utterly discredit [the plaintiff’s version] that no reasonable jury
could believe it.” Morton, 707 F.3d at 1284. The video – which runs
approximately thirty seconds from the moment the defendant opens the police
building door to the moment Collar is shot – does not live up to this exacting
standard.
The video does not show Collar ever touching the defendant or reaching for
him or his gun. The defendant insists the video proves that Collar was “never
“‘yards away’” from him, (Doc. 23 at 14), but to the Court it appears the video
shows that Collar was never much closer than about six feet (two yards) from the
defendant.13 The defendant insists the video proves that Collar at one point “came
within arm’s length” of him14 but, because he and Collar were at the far end of the
station patio and in a straight line to the camera, it is not possible to reliably

13

The defendant suggests the complaint’s allegation that Collar was shot
“essentially at point-blank range,” (Doc. 1, ¶ 36), contradicts the allegation that he was
“yards away” from the defendant when he was shot. (Doc. 23 at 13 & n.6). There is no
inconsistency. Technically, “point blank” means that the target is so close that the
shooter in aiming need not account for gravity’s effect on the bullet’s trajectory.
Colloquially, it connotes a target so close the shooter can scarcely miss. Either usage is
fully compatible with firing a .40 caliber sidearm, (Doc. 1, ¶ 27), from a distance of about
six feet.
14

The defendant quantifies this distance as one to two feet. (Doc. 33 at 8, 10).

9

estimate their separation distance at that moment.15 The defendant insists the
video proves that Collar assumed “a series of fighting poses,” but the only “pose”
the video clearly shows is Collar kneeling as the defendant retreats; Collar at times
moves his feet and arms in a manner that could possibly mimic the motions of a
boxer in a ring, but these moments are brief and ambiguous, especially given that
the video never appears to show Collar’s hands in a fist or his arms extended
towards the defendant. The defendant insists the video proves that Collar “quickly
charged” after him, but in those portions of the video in which Collar’s forward
motion is observable, he appears to be moving at approximately three feet per
second, or about two miles per hour – generally considered an ambling pace. The
defendant insists the video proves that Collar was “noncompliant” but, since there
is no audio component, the video fails to show that the defendant issued any
orders. The defendant insists the video proves that Collar was “very aggressive”
but, as noted, Collar’s movement towards the defendant does not appear to have
been either swift or sudden, and he appears to have maintained a distance of about
six feet, sometimes more, throughout the defendant’s retreat; for all that appears
on the video, as the defendant backed up Collar was simply maintaining contact
with him as he sought assistance. The defendant insists the video proves that
Collar was “unpredictable [and] drug-crazed” but, as discussed above, this is at
best one of multiple constructions of what the video depicts.
For a variety of reasons, the video does not show, and show clearly,
everything that occurred during the thirty seconds during which the defendant and
Collar interacted.16 Consequently, the video probably does not render the

15

Because the defendant plainly appears to be much further from Collar both one
second before and one second after the instant on which the defendant seizes, it seems
unlikely they were much closer in the interim.
16

The video camera is in a fixed position, so portions of the sequence are closer
and in better focus than others. The participants’ movements after they left the covered
front patio of the police station are partially obscured by brick columns, a banner, the
10

defendant’s version of events incredible. For present purposes, however, what
matters is that the video does not “so utterly discredit [the plaintiffs’ version] that
no reasonable jury could believe it.” Morton, 707 F.3d at 1284. The allegations
of the complaint thus remain intact and, as discussed above, they reflect the
violation of a clearly established constitutional right.
Under such circumstances, “the plaintiff ordinarily will be entitled to some
discovery.” Crawford-El, 523 U.S. at 598; accord Anderson, 483 U.S. at 646 n.6
(when the plaintiffs (as here) allege actions that no reasonable officer could have
believed lawful, “and if the actions [the defendant] claims he took are different
from those [the plaintiffs] allege …, then discovery may be necessary before [the
defendant’s] motion for summary judgment on qualified immunity grounds can be
resolved”). “Of course, any such discovery should be tailored specifically to the
question of [the defendant’s] qualified immunity.” Id.; accord Crawford-El, 523
U.S. at 599-600 (“Of course, the judge should give priority to discovery
concerning issues that bear upon the qualified immunity defense, such as the
actions that the official actually took, since that defense should be resolved as
early as possible.”).
The mechanism for obtaining such discovery is Rule 56(d):
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).17

glare of artificial lighting and the darkness of the surrounding night. Even on the patio,
the video cannot capture what is not facing the camera or is blocked from view.
17

Current Rule 56(d) “carries forward without substantial change the provisions
of former subdivision (f).” Fed. R. Civ. P. 56 advisory committee notes 2010
amendments. The Court therefore considers precedents decided under former Rule 56(f).
11

The defendant first objects that the plaintiffs have filed no affidavit. (Doc.
23 at 18 n.9, 20). Despite the wording of the rule, “[i]n this Circuit, a party
opposing a motion for summary judgment need not file an affidavit … in order to
invoke the protection of” Rule 56(d); the “written representation” of counsel is
sufficient. Snook v. Trust Co. of Georgia, 859 F.2d 865, 871 (11th Cir. 1988). The
absence of an affidavit is thus immaterial.
“A Rule 56([d]) motion must … se[t] forth with particularity the facts the
moving party expects to discover and how those facts would create a genuine issue
of material fact precluding summary judgment.” Harbert International, Inc. v.
James, 157 F.3d 1271, 1280 (11th Cir. 1998).18 The defendant denies that the
plaintiffs have complied with this directive. (Doc. 23 at 20-23).
The plaintiffs identify the discovery they need as: (1) the defendant’s
deposition; (2) the campus police chief’s deposition; (3) the depositions of campus
officers who witnessed some or all of the event; (4) inspection of the premises; (5)
the medical examiner’s deposition; and (6) the depositions of investigators. (Doc.
21 at 10-14). The significance of this discovery seems obvious. The critical issue
on the defendant’s motion for summary judgment as to the federal claim is what
actually occurred in the moments before Collar was shot, (Doc. 8 at 24-30), and on
this issue the defendant relies on his interrogatory responses from the previous
state action and on the video discussed above. (Id. at 3-6). Because Collar is
deceased, the plaintiffs cannot rely on his version of events. The defendant’s
discovery responses are untested and, as discussed above, the video is limited in
scope and largely inconclusive, though it can be viewed as supportive of the
18

Accord Exigent Technology, Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1310
(11th Cir. 2006); see also Securities and Exchange Commission v. Spence & Green
Chemical Co., 612 F.2d 896, 901 (5th Cir. 1980) (a Rule 56(d) movant must “specifically
demonstrate[e] how postponement of a ruling on the motion will enable him, by
discovery or other means, to rebut the movant’s showing of the absence of a genuine
issue of material fact” and “may not simply rely on vague assertions that additional
discovery will produce needed, but unspecified, facts”).

12

plaintiffs’ claim. All proposed depositions are of persons believed to have
information concerning what occurred in the moments before Collar was shot,19
and the premises inspection would reveal distances and perhaps other information
needed for assessing and countering the defendant’s version of events. The
plaintiffs pointed out all of this in their motion. (Doc. 21 at 10-14).
The defendant is vague about what he contends is missing from the
plaintiffs’ presentation. To the extent he suggests the plaintiffs must warrant that
they “expect” the deponents’ testimony will support their case and damage the
defendant’s, the Court has previously read Harbert as requiring not “a
representation that discovery probably will be successful [but] an explanation of
how discovery could be successful.” Williams v. Le Crewe de Spaniards, 2009
WL 3381519 at *2 (S.D. Ala. 2009). Such an explanation is both provided and
obvious – discovery concerning what occurred on the night of October 5-6, 2012
could easily reveal evidence that the defendant shot Collar in violation of his
clearly established constitutional rights.
To the extent the defendant suggests the plaintiffs must list “the facts” they
hope to elicit in discovery, it is clear they are looking for evidence corroborating
the factual allegations of the complaint and their construction of what the video

19

As the plaintiffs note, (Doc. 21 at 13-14), information from the medical
examiner could help determine how far Collar was from the defendant when he was shot.
The investigators could provide information concerning statements made by witnesses
and reduce material from their files to admissible form. The defendant does not dispute
the plaintiff’s statement that much of the content of those files is presently objectionable
under Rule 56(c)(2). (Id. at 3).
The defendant submitted the affidavit of Chief Aull in support of his motion for
summary judgment. (Doc. 8-10). Although the affidavit largely addresses the content
and scope of University policies on use of force and of the defendant’s compliance with
them (to support the defendant’s assertion of state-agent immunity), it also expresses
Chief Aull’s opinion – based in part on his interview of the plaintiff and review of other
material – that the defendant properly employed deadly force.

13

reveals.20 To the extent he suggests the plaintiffs must explain how such evidence
would “preclud[e] summary judgment,” their discussion of the complaint and the
video does so.21
“Whether to grant or deny a Rule 56([d]) motion for discovery requires the
court to balance the movant’s demonstrated need for discovery against the burden
such discovery will place on the opposing party.” Harbert, 157 F.3d at 1280. The
defendant denies that the plaintiffs have any demonstrated need for discovery
because: (1) they have his interrogatory responses; (2) his version of events is
conclusively confirmed by the video; and (3) the plaintiffs had “ample discovery”
in the previous state action. (Doc. 23 at 21, 23-25). As discussed below, none of
these arguments is meritorious.
The defendant sniffs that the plaintiffs have no need for discovery as to
what happened because he, in his untested interrogatory responses, has told them.
(Doc. 23 at 21). He offers no authority, however, for the peculiar proposition that
a defendant may deny a plaintiff any discovery by the simple expedient of moving
for summary judgment on the strength of his unilateral, intensely self-interested,
exculpatory sworn statement.22 “The parties’ comparative access to the witnesses
20

The defendant relies on Garner v. City of Ozark, 587 Fed. Appx. 515 (11th Cir.
2014). In Garner, however, the plaintiff simply stated she “would like to present expert
witnesses on recognition of individuals with autism, proper handling of police dogs, and
the nature of [the defendant’s] capacity and propensity for physical violence.” Id. at 518.
Identifying the subject matter of proposed expert testimony plainly did not identify the
factual matters the plaintiff sought to discover.
21

The defendant objects that the plaintiffs improperly used their reply brief to fill
some of these alleged gaps in their Rule 56(d) presentation. (Doc. 33 at 2). The Court
finds the plaintiffs’ principal brief to include a fully adequate presentation but, in any
event, the defendant’s filing of a sur-reply brief negates any prejudice to him from the
plaintiffs’ reply brief.
22

The defendant cites only Ex parte Haralson, 871 So. 2d 802 (Ala. 2003). Even
could a state court decision control the Court’s construction and application of Rule
56(d), Haralson is irrelevant because the plaintiff there, while objecting to resolution of a
motion for summary judgment based on the defendant’s affidavit, did not move for
discovery under Alabama’s version of Rule 56(d). Id. at 807. (cont’d)
14

or material relevant to the disposition of the rule 56([d]) motion is a particularly
salient factor for the trial court to consider in exercising its discretion.” Walters v.
City of Ocean Springs, 626 F.2d 1317, 1321 (5th Cir. 1980). Forcing the plaintiffs
to take the defendant’s carefully crafted statement at face value does not afford
them comparable access to this singularly important witness.23
The defendant, returning to a previous argument, insists that the video is so
conclusive, and so perfectly corroborative of his version of events, that discovery
would be futile and is thus unneeded. (Doc. 23 at 25). As set forth above, the
video does not so utterly discredit the plaintiff’s version that no jury could accept
it; on the contrary, in multiple particulars it draws the defendant’s version of
events into question.
According to the plaintiffs, the only discovery materials they received in
the state suit were the defendant’s interrogatory responses and investigative
materials from the county sheriff. Discovery was stayed for all but about four
months, based on orders sought and obtained by the defendant, with the final stay
entered the day after the plaintiff received the interrogatory responses. (Doc. 21 at
2-3). The defendant disputes none of this. Instead, the defendant suggests counsel
has admitted in a statement to the media that the only evidence the plaintiffs need
is the video. (Doc. 23 at 24).24 Counsel’s comment is not nearly so strong as that
but, even if it were, such a statement, offered for public consumption, does not
Parenthetically, the defendant’s purported “adopt[ion] and incorporat[ion]” of his
argument concerning Haralson from his reply brief on motion to stay, (Doc. 23 at 22-23),
is an improper and ineffective effort to avoid the page limitations of Local Rule 7.1(b).
23

The defendant describes Chief Aull as a disinterested witness, such that his
affidavit cannot be disregarded so long as it is “uncontroverted and unimpeached.” (Doc.
23 at 23). That may be so, but it is unresponsive to the issue whether the plaintiffs should
be permitted discovery in order to controvert or impeach his affidavit.
24

The parties do not state when the plaintiffs came into possession of the video,
and the earliest disclosure the Court can confirm is as an attachment to the video to the
defendant’s amended answer in this action. (Doc. 5-1).

15

constitute a judicial admission and is irrelevant to the Court’s consideration of the
pending motion.
The plaintiffs’ need for discovery having been demonstrated, the Court’s
task becomes one of “balanc[ing] the movant’s demonstrated need for discovery
against the burden such discovery will place on the opposing party.” Harbert, 157
F.3d at 1280. “In qualified immunity cases, the Rule 56([d]) balancing is done
with a thumb on the side of the scale weighing against discovery.” Id. As the
Harbert Court explained, this colorful imagery means only that the Court “‘must
exercise its discretion so that officials are not subjected to unnecessary and
burdensome discovery or trial proceedings.’” Id. (quoting Crawford-El, 523 U.S.
at 597-98) (emphasis added). This is accomplished by ensuring that “any such
discovery [is] tailored specifically to the question of [the defendant’s] qualified
immunity.” Anderson, 483 U.S. at 646 n.6.25
The Court, after carefully considering the foregoing, the plaintiffs’
requested discovery and the defendant’s response thereto, (Doc. 21 at 10-14; Doc.
23 at 26-30), concludes that the plaintiffs should be permitted to engage in the
following discovery prior to any ruling on the defendant’s motion for summary
judgment:
1. Deposition of the defendant, limited to the following topics:
a.

The defendant’s background, training and familiarity with
University policies concerning use of force;

25

The plaintiffs acknowledge Harbert as authoritative concerning their federal
claim but argue they are entitled to “full discovery” with respect to their state claim.
(Doc. 21 at 10, 16). The Court is doubtful that Rule 56(d) can be construed any more
leniently in the latter context. Because “[d]iscretionary-function immunity arising under
Alabama law is, like qualified immunity arising under federal law, immunity from suit,”
denials of state immunity may be raised on interlocutory appeal under the same
circumstances as denials of qualified immunity. Taylor v. Adams, 221 F.3d 1254, 1260
n.9 (11th Cir. 2000). For the same reason, the Court concludes that the balancing required
by Rule 56(d) must be conducted similarly for both qualified immunity and state-agent
immunity.
16

b.

The defendant’s duties as a campus police officer, both
generally and on the night in question;

c.

The equipment issued and available to him and instructions
regarding its use;

d.

The existence and use of audio and video monitors, outside
the police station and on the person of officers;

e.

The encounter between the defendant and Collar, including
the defendant’s thoughts and including comparison with other
evidence of the encounter, from the moment the defendant
opened the station door to the moment Collar was shot; and

f.

The defendant’s interrogatory responses and any statements
made to investigators.

2. Deposition of Chief Aull, limited to the following topic:
a.

Cross-examination on matters addressed in his affidavit.

3. Depositions of Jeff Loman, Bernard Parrish and any other campus
officer that arrived on the scene before, or shortly after,
the shooting, limited to the following topic:
a.

Their eyewitness accounts of the encounter between the
defendant and Collar.

4. Deposition of the medical examiner who performed the autopsy, limited
to the following topic:
a.

The distance between the defendant and Collar at the moment
Collar was shot.

5. Deposition of anyone connected with the sheriff’s department who
investigated the shooting incident, limited to the following topics:
a.

Statements taken from the defendant or any other witness;
and

b.

Documentation of the scene, including authentication.

6. Inspection of the premises by plaintiffs’ counsel and expert, including
17

without limitation the taking of measurements.
The defendant’s protests notwithstanding, all of this discovery is relevant to
one or more issues that must be addressed in resolving his motion for summary
judgment on the grounds of qualified and state-agent immunity, including at least
the following: (1) whether the defendant was acting within his discretionary
authority; (2) what actually occurred; (3) the seriousness of the crime or crimes for
which the defendant sought to arrest Collar; (4) whether Collar posed an
immediate threat of serious bodily harm; (5) Collar’s resistance vel non to arrest;
(6) the defendant’s provision vel non of a warning before employing deadly force;
and (7) the existence and scope of policies and/or orders concerning use of force
and the defendant’s compliance vel non with them.
To the extent set forth above, the plaintiffs’ motion for relief under Rule
56(d) is granted. The Magistrate Judge will enter an order establishing a time
frame for such discovery and will, as in all cases, resolve any disputes that may
arise. Once this limited discovery is completed or the time for completion passed,
the Court will enter an order establishing a briefing schedule on the defendant’s
motion for summary judgment. To the extent the plaintiffs seek different or
additional relief, their motion is denied.26
DONE and ORDERED this 5th day of February, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

26

Without limitation, this denial includes the plaintiffs’ request that the Court
deny the defendant’s motion for summary judgment, (Doc. 21 at 17), and any request for
additional discovery.
18