Collar et al v. Austin
ORDER granting 57 Motion for Summary Judgment; denying 66 Motion for Partial Summary Judgment; granting in part and denying in part 64 Motion to Strike; granting in part and denying in part 65 Motion to Strike; denying as moot 73 Moti on to Strike; denying as moot 74 Motion to Strike; granting in part and denying in part 75 Motion to Strike; denying as moot 76 Motion to Strike; granting 83 Motion to Substitute. Signed by Chief Judge William H. Steele on 9/15/2015. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
REED COLLAR, et al., etc.,
) CIVIL ACTION 14-0349-WS-B
TREVIS AUSTIN, etc.,
This matter is before the Court on the defendant’s motion for summary
judgment and the plaintiffs’ motion for partial summary judgment. (Docs. 57, 66).
The parties have submitted briefs and evidentiary materials in support of their
respective positions, (Docs. 58-60, 67-70, 77, 86, 92), and the motions are ripe for
resolution. After careful consideration, the Court concludes that the defendant’s
motion is due to be granted and the plaintiffs’ motion denied.
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. The defendant is sued in both his individual
capacity and his official capacity. (Doc. 1).1
The plaintiffs concede they “cannot legally maintain an‘official capacity’ claim
against” the defendant. (Doc. 67 at 4 n.1).
The defendant seeks summary judgment based on qualified immunity as to
Count One and state-agent immunity as to Count Two. (Doc. 57 at 1). The
plaintiffs seek partial summary judgment as to the immunity defenses and further
as to liability on Count One. (Doc. 66 at 1).
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003). This standard applies fully in the qualified immunity context.
E.g., Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.2 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
Because the evidence and inferences therefrom must be viewed most
favorably to the nonmovant, in assessing the defendant’s motion the plaintiffs’
version of the facts (to the extent supported by the record) controls, though that
version can be supplemented by additional material cited by the defendant and not
contrary to the plaintiffs’ version.
A. Evidentiary Challenges.
The plaintiffs have filed two motions to strike, (Docs. 64-65), while the
defendant has filed four. (Docs. 73-76).
As the Court has often noted, “the proper response to [objectionable]
evidence … is to discount such materials, not to strike them from the record.” Roy
v. Correctional Medical Services, 2014 WL 5285521 at *9 n.8 (S.D. Ala. 2014).3
The Court therefore construes the motions to strike as motions to exclude the
challenged evidence or to assign it no weight.
1. Motion to strike evidence of what occurred before Collar arrived at
the University police station.
Before encountering the defendant, Collar ingested a chemical known as
“25I.” The defendant offers a state toxicological analysis report confirming the
presence of this substance in Collar’s body. (Doc. 58-3 at 14). The defendant also
Accord Morgan v. Bill Vann Co., 2013 WL 4657554 at *1 n.1 (S.D. Ala. 2013)
(“[M]ovant provides no explanation for why the draconian step of striking this testimony
from the record (rather than simply finding that it fails to give rise to genuine issues of
material fact on summary judgment) is an appropriate remedy.”); Mississippi Valley Title
Insurance Co. v. Marion Bank and Trust Co., 2012 WL 4856690 at *7 n.9 (S.D. Ala.
2012) (“The appropriate response to irrelevant evidence is not to strike the evidence but
to consider it and afford it the weight (none) it deserves.”); see also English v. CSA
Equipment Co., 2006 WL 2456030 at *2 n.5 (S.D. Ala. 2006) (listing four circumstances
under which striking evidentiary material might be appropriate).
offers statements from four witnesses regarding Collar’s ingestion of 25I and his
behavior after having done so but before he encountered the defendant. (Docs. 581, -4, -5, -6).
The plaintiffs challenge the witness statements as irrelevant (since the
defendant did not possess this information when he encountered Collar) and as
inadmissible unsworn statements. (Doc. 64 at 4-8). The defendant admits that,
because the statements are unsworn, they may not be considered by the Court.
(Doc. 58 at 2 n.2). The Court has recently so held. Rachel v. City of Mobile, ___
F. Supp. 3d ___, 2015 WL 3562273 at *3 (S.D. Ala. 2015).
The plaintiffs at one point object to the toxicological analysis report, (Doc.
64 at 2), but they do not in their conclusion seek its exclusion. (Id. at 9).
Moreover, their only comment regarding the report is that “[i]t is not contested
that Gil Collar ingested” what is now known to be 25I. (Id. at 3). Their points
appear to be that the defendant did not know what Collar had ingested and that 25I
was not illegal at the time. (Id. at 3-4). But the defendant makes no argument to
the contrary. The simple fact that Collar ingested 25I merely provides
background, explaining the probable cause of his conduct and setting the stage for
For the reasons set forth above, the plaintiffs’ motion is granted with
respect to the witness statements and denied with respect to the toxicological
2. Motion to strike expert opinions.
The defendant has provided testimony, based on his measurement of the
distance covered and the time elapsed as shown on a police video, as to the speed
at which Collar was moving in the final seconds before he was shot.4 University
The plaintiffs attribute this evidence to both the defendant and the University
police chief, (Doc. 65 at 3, 7), but the portions of the defendant’s brief to which they cite
reference only the defendant’s deposition. (Doc. 58 at 8-9, 10-11).
Police Chief Aull has provided testimony, based on the presence of stippling
around the bullet entry hole, that Collar’s chest was within two feet of the
defendant’s firearm at the moment of the shot. Chief Aull and two officers
(Parrish and Helton) have stated that the defendant did the right thing and/or that
they would have done the same thing.
The plaintiffs describe all this evidence as expert testimony and challenge it
for failure to comply with Rule 26(a)(2) and the Magistrate Judge’s order
concerning expert witnesses. In addition, they deny the defendant is qualified as a
“human factor or event reconstructionist” expert, and they claim his testimony is
“materially flawed and inaccurate” for purposes of a Daubert analysis. They also
assert that Chief Aull admitted he is no expert and that his opinion regarding the
distance between the defendant and Collar is contradicted by other evidence.
Finally, they complain that the defendant agreed Chief Aull would offer no
testimony regarding the reasonableness of the shooting, that Parrish’s testimony
was unsolicited and exceeded the permitted scope of his deposition, and that
Helton’s statement was made on the scene, not as formal testimony under oath.
(Doc. 65 at 2-14).
“It’s commonly understood that lay witnesses may estimate size, weight,
distance, speed and time even when those quantities could be measured precisely.”
Strong v. Valdez Fine Foods, 724 F.3d 1042, 1046 (9th Cir. 2013). “‘The
prototypical example of the type of evidence contemplated by the adoption of Rule
701 relates to … distance ….’” Harris v. J.B. Robinson Jewelers, 627 F.3d 235,
241 (6th Cir. 2010) (quoting Asplundh Manufacturing Division v. Benton Harbor
Engineering, 57 F.3d 1190, 1196 (3rd Cir. 1995)); accord United States v. Conn,
297 F.3d 548, 554 n.2 (7th Cir. 2002).
The defendant obviously has first-hand knowledge of the route he and
Collar took, and he is permitted as a layman to offer testimony as to the distance
covered. To the uncertain extent the plaintiffs suggest the defendant could
permissibly estimate the distance as 50 feet but could not permissibly measure the
distance as 50 feet using a measuring wheel,5 they cite no authority remotely
supporting such an implausible assertion. If that were true, a layman could
estimate the width of his countertop but only an expert could measure it with a
yardstick; a layman could estimate the weight of a package, but only an expert
could place it on a scale; a layman could estimate the length of her running route,
but only an expert could measure it with a car odometer. The Court has
discovered no case suggesting that a measuring wheel (with its numberless
varieties sold cheaply by the thousands from a wide range of retailers) is such an
esoteric contraption that only an expert is qualified to use one. Even had the
plaintiffs identified any flaw in the defendant’s use of a measuring wheel (and
they have not), that would merely reduce his measurement to an estimate, which
he is of course entitled to provide as a layman.
The police video, which contains a time counter, depicts the beginning and
the end of the 50-foot traverse. From the video and counter, the defendant
identified the elapsed time as approximately six seconds, a figure confirmed by the
Court’s review of the video. Inexplicably, the plaintiffs insist without explanation
that “looking at video time stamps” is a job that can be performed only by an
expert, (Doc. 65 at 7), a revelation that must come as a shock to anyone who has
ever used a camcorder or camera phone with a time counter.6
The defendant divided the distance traveled (50 feet) by the elapsed time
(six seconds) to derive an average speed (8.33 feet per second). The plaintiffs,
again without explanation, describe this calculation as “an opinion of an expert
The plaintiffs complain vaguely about “taking measurements.” (Doc. 65 at 7).
The plaintiffs argue that, because the video does not clearly show the entire
traverse, the defendant must be “guess[ing].” (Doc. 65 at 10). This is a non sequitur.
Only the length of the traverse, plus a video showing the beginning and end of the
traverse and the times associated with each, are necessary in order to perform a
mathematical calculation of average speed.
nature.” (Doc. 65 at 3). The quotient of simple division cannot possibly be a
matter of opinion, and the formula for speed is taught to every middle school child
in the land. Both the formula and the calculation are matters of fact, not opinion.
Because the defendant’s testimony regarding Collar’s speed does not and
need not involve any expert opinion, it is irrelevant whether he was identified or
qualified as an expert. Accordingly, the plaintiffs’ motion as to this evidence is
Chief Aull testified that he looked at photographs of Collar’s body and
noticed stippling at the entry point, which “told me that [the defendant] and Collar
were two feet apart from the barrel of his gun when he pulled the trigger.” (Doc.
65 at 11; Doc. 58-9 at 20-21). The defendant acknowledges that Chief Aull’s
conclusion of a two-foot distance from the presence of stippling represents an
opinion rather than a fact, but he argues it is a lay opinion under United States v.
Myers, 972 F.2d 1566 (11th Cir. 1992). (Doc. 78 at 11).
In Myers, the Eleventh Circuit ruled the trial court did not abuse its
discretion in allowing as lay opinion the testimony of an officer that marks he
observed on the victim’s back were consistent with marks that would be left by a
stun gun. 972 F.2d at 1577. The Court noted that “[h]is conclusion was rationally
based upon his personal perception of [the victim’s] back and his nineteen years of
experience on the police force.” Id. The defendant assumes that Myers stands for
the proposition that any police officer with any considerable length of service may
offer lay opinion testimony on anything related to police work. (Doc. 78 at 13).
Rule 701 requires that a lay opinion be “rationally based on the witness’s
perception.” This requires that Chief Aull not only have perceived the stippling on
Collar’s body but also that he have past experience perceiving that stippling occurs
only when the firearm is within two feet of the victim. The Myers Court, utilizing
a forgiving abuse-of-discretion standard of review, concluded that the witness’s
nineteen years on the force could plausibly indicate he had experience observing
marks left by stun guns, but the Court did not hold that such service must be
deemed to demonstrate such experience.
The defendant has offered no evidence that Chief Aull has ever witnessed
stippling in the past, much less that he knows from observation that stippling
occurs when the barrel is within two feet but not when it is outside two feet.7
Indeed, the defendant has offered no evidence of even the length of Chief Aull’s
law enforcement service.8
“The ultimate decision as to the admissibility of lay opinion testimony is
committed to the sound discretion of the district court ….” Myers, 972 F.2d at
1576-77. Given the defendant’s failure of evidence providing a foundation for a
proper lay opinion, the Court rejects the proffered evidence as lay opinion
Nor can the evidence be admitted as expert testimony. In accordance with
Rule 26(a)(2), the defendant was required by court order to identify by May 18,
2015 any expert to be used in support of his motion for summary judgment. (Doc.
47 at 1). The defendant identified no expert, either by the deadline or at any later
“If a party fails to … identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that … witness to supply evidence on a motion …,
unless the failure is substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). “The burden is on the party facing sanctions to prove that its failure to
comply with Rule 26(a) was substantially justified or harmless.” Rembrandt
Chief Aull testified only that he “ha[s] an idea of what stippling is.” (Doc. 58-9
The defendant asserts in brief that Chief Aull has 25 years of such service.
(Doc. 78 at 11, 13). However, his only cited evidence reflects merely when Chief Aull
completed studies at the Baton Rouge police academy; it does not address what he has
done since then. (Doc. 78-1 at 3).
Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., 725 F.3d 1377,
1381 (11th Cir. 2013) (internal quotes omitted). Without acknowledging his
burden, the defendant suggests several excuses for his violation, none of which are
equal to the task.
The defendant first suggests his failure to identify Chief Aull as an expert is
irrelevant because the plaintiffs elected to take his deposition. (Doc. 78 at 16).
The cases on which he relies, however, state only that a party cannot complain
when its questioning of a witness naturally elicits unfavorable testimony. Nothing
in these cases remotely supports the proposition that the failure to identify an
expert can be excused because the opponent deposed a witness later claimed to be
an expert. The plaintiffs were entitled to assume that the defendant would offer
opinions from Chief Aull, if at all, only as a layman. This is especially so since
defense counsel expressly stated at Chief Aull’s deposition that “[m]y intention is
to not disclose experts or use experts in support of the summary judgment
motion.” (Doc. 65-1 at 10).9
The defendant also says his failure is irrelevant because the plaintiff could
have deposed the medical examiner about stippling but chose not to do so. (Doc.
78 at 14). This is a non sequitur deserving no response.
Because Chief Aull’s testimony can be admitted, if at all, only as an expert
opinion, and because the defendant’s procedural failing precludes him from using
an expert witness, the plaintiffs’ motion as to this evidence is granted.10
Nor is the defendant correct in asserting that the plaintiffs’ questioning elicited
Chief Aull’s testimony regarding a correlation between stippling and proximity. (Doc. 78
at 10). On the contrary, Chief Aull volunteered, without any question before him, his
opinion as to the significance of the stippling. (Doc. 58-9 at 20-21).
The practical effect of this ruling is minimal. Even were Chief Aull’s
testimony permitted, he testified (according to the deposition excerpts cited by the
defendant) that stippling could occur from a distance as far as three feet. (Doc. 58-9 at
25-26). Since that is the version of Chief Aull’s testimony most favorable to the
plaintiffs, the Court would be required to accept the three-foot figure rather than the twofoot figure the defendant champions. As discussed in Part I.B, the evidence most
The plaintiffs understand the testimony of Chief Aull and Officers Parrish
and Helton as being offered for the proposition that the defendant’s act of shooting
Collar was objectively reasonable and thus constitutional. (Doc. 65 at 13). Were
that the defendant’s purpose, it may well be that only expert testimony would be
acceptable. But the defendant offers the evidence, not to prove that his conduct
was in fact constitutional but to show that, even if it was unconstitutional, a
reasonable officer in his position could have believed it was constitutional, so as to
clothe him with qualified immunity. (Doc. 78 at 20; Doc. 58 at 28). The plaintiffs
in their reply brief ignore this important distinction, and the Court will not address
it unilaterally on their behalf. Accordingly, the plaintiffs’ motion as to this
evidence is denied.11
3. Motion to strike plaintiff’s affidavit.
The plaintiffs offer the affidavit of Bonnie Collar to show that Chief Aull
made promises at freshmen orientation that are relevant to the “duties of care or
standards” under Count Two. (Doc. 82 at 4-5). Because the Court resolves Count
Two based on immunity, evidence of duties and standards of care are not relevant,
and the Court thus has not considered Ms. Collar’s affidavit. Accordingly, the
defendant’s motion is denied as moot.
4. Motion to strike defendant’s recorded statement.
The defendant was interviewed by representatives of the Mobile County
Sheriff’s Department in the hours after the shooting. The plaintiffs have submitted
favorable to the plaintiffs is that the distance from the defendant’s gun to Collar’s chest
when the shot was fired was about three feet.
However, this evidence plays no part in the Court’s resolution of the qualified
a transcription of that interview. The defendant objects that the transcription
contains multiple errors and points out that a more perfect version exists. (Doc.
74). The plaintiffs move to substitute the better version, (Doc. 83), and the
defendant does not object. (Doc. 91). Accordingly, the motion to substitute is
granted and the motion to strike is denied as moot. The Court will consider only
the substituted statement. (Doc. 83 at 4-16).
5. Motion to strike dispatcher’s statements.
Dispatcher Jeffrey Loman penned a handwritten statement concerning the
incident. He also gave an oral interview to Sheriff’s Department representatives,
which interview was reduced to a transcript. The defendant objects that both
documents are unsworn and are hearsay. (Doc. 75).
“Unsworn statements do not meet the requirements of Fed. Rule Civ. Proc.
56(e) and cannot be considered by a district court in ruling on a summary
judgment motion.” Carr v. Tartangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003)
(internal quotes omitted); accord Southern Grouts & Mortars, Inc. v. 3M Co., 575
F.3d 1235, 1248 n.8 (11th Cir. 2009). As the Court has noted, “[w]hile these cases
were decided under a previous version of Rule 56, the Eleventh Circuit has
continued to apply the rule under the current version.” Jackson v. Lee, 2014 WL
4829552 at *2 n.5 (S.D. Ala. 2014) (citing cases). Indeed, the plaintiffs insist that
the rule be applied in this case. (Doc. 64 at 8).
At his deposition, Loman listened to the audio version of his interview and
read along with the transcript. (Doc. 84 at 26-27). He confirmed the accuracy of
the transcript and then stated he knew it was important to tell the truth to the
investigators and that he did so to the best of his ability, as fully and completely as
he could. (Id. at 27, 30-31). The plaintiffs conclude that Loman confirmed under
oath that his unsworn statement was true and thereby “adopted” the statement
“under penalty of perjury,” satisfying the requirement of a sworn statement. (Id. at
4). They cite the advisory committee note to Rule 801(d)(1), which states that,
“[i]f the witness admits on the stand that he made the statement and that it was
true, he adopts the statement and there is no hearsay problem.” Thus, “if the
witness admits the truth of the prior inconsistent statements then the witness in
effect adopts the prior statement [sic] as his present testimony, given under oath
and subject to cross-examination. The hearsay element is no longer present.”
United States v. Davis, 487 F.2d 112, 123 (5th Cir. 1973) (emphasis added); accord
Amarin Plastics, Inc. v. Maryland Cup Corp., 946 F.2d 147, 153 (1st Cir. 1991);
Bell v. City of Milwaukee, 746 F.2d 1205, 1274 (7th Cir. 1984). The defendant
offers no relevant reply. (Doc. 87). The Court concludes that Loman’s deposition
renders his recorded statement both sworn and non-hearsay.
As to Loman’s handwritten statement, the plaintiffs assert only that it might
be admissible “at trial … depending on how Loman testifies at that time.” (Doc.
84 at 7). Perhaps so, but the question is whether the statement can be used on
motion for summary judgment, not at trial. Since the statement is unsworn and the
plaintiffs offer no explanation how it can be deemed sworn or the oath or
affirmation requirement excused, the statement cannot be considered.
For the reasons set forth above, the defendant’s motion is granted with
respect to Loman’s handwritten statement and denied with respect to the transcript
of his interview.
6. Motion to strike expert affidavit.
The plaintiffs offer the affidavit of Melvin Tucker to show that “the
conduct of [the defendant] amounted to a Constitutional violation” and that the
defendant “violated USA PD policies and procedures.” (Doc. 80 at 3, 13).
Because the Court resolves Count One on the grounds that no constitutional right
violated by the defendant (if any) was clearly established, it is irrelevant whether
the defendant violated the Constitution. And because the Court concludes that any
violation of the policy on which the plaintiffs rely would not strip the defendant of
state-agent immunity, it is irrelevant whether the defendant violated the policy.
The Court therefore has not considered the affidavit, and the defendant’s motion is
denied as moot.
B. Statement of the Evidence.
On the night of October 5, 2012, University student Collar ingested 25I, a
synthetic drug then legal. As the plaintiffs state, “this substance caused [Collar] to
become impaired to the point that he completely disrobed and began to act
irrationally” and “in a bizarre manner.”12 At approximately 1:23 a.m. on October
6, 2012, Collar approached the University police station on campus, still naked. A
video camera mounted on the front of the building captured portions of what
happened next. Collar walked up to the front door before turning and walking
away from the building, out of camera range. Within thirty seconds, he returned.
He walked past the front door to a window, which he pounded violently with his
right fist six times, throwing his whole body into each forward thrust. He then
turned and walked away, again out of camera range.
The defendant and Loman were the only persons inside the building. The
defendant was in a back room, completing an arrest report. He jumped up from
his chair when the pounding began and, before it had ended several seconds later,
he had unholstered his Glock pistol and exited the room in a crouching position or
tactical stance. The pounding shook the entire building, and the defendant
believed it was the result of gunshots or explosions. Officer Parrish, who was in
the side parking lot, thought the noise sounded like loud shotgun blasts.
The defendant first went to the dispatch room to check on Loman. He
asked Loman, “What was that?” Loman answered that he didn’t know but that it
wasn’t gunshots. While they were talking, Loman saw Collar and told the
defendant there was a guy outside and asked if he had made the noise. For present
(Doc. 64 at 4; Doc. 67 at 7). The plaintiffs nevertheless object to the
defendant’s description of Collar as “drug-crazed.” (Id. at 25, 26).
purposes, the Court assumes Loman told the defendant the guy was sweaty and
naked.13 The defendant did not see Collar at any point before he exited the
The defendant, in uniform, exited the dispatch room and issued a radio call:
“Eleven, all units report to the office, there are several loud bangs that rocked the
office.” He then exited the front door (which swings outward), 23 seconds after
Collar’s first pound on the window. He exited with his firearm held in both hands,
his arms extended, the gun pointing slightly down and not at anyone or anything.
Within about four seconds of the door beginning to open, the defendant
observed Collar approaching him from the direction of the street, jumping up and
down and extending his arms as he came within about six feet of the defendant.
The defendant began backing up parallel to the front of the building, weapon
trained on Collar, and ordered him to get on the ground. Collar went to one knee
and then both and said, “Shoot me,” then immediately got back up and continued
advancing on the defendant (who continued to back up during the two to three
seconds Collar was not on both feet). The defendant again yelled at Collar to get
down on the ground, then did so a third time. Instead, Collar continued advancing
on the defendant, closing the gap between them to about two feet by the time he
reached the end of the patio along the front of the building about eight seconds
later. He was walking about two miles per hour but again was jumping and
swinging his arms as he did so. The defendant interpreted Collar’s movements as
aggressive. As he backed up, the defendant tried to unholster his pepper spray
with one hand while holding his pistol in the other, but Collar began his bouncing
This is a rather generous assumption. The transcript of Loman’s statement
reads as follows: “I said hey, there’s a guy out there, you know, he’s all sweaty. He was
all sweaty and naked. I was like, was it him that made the noise?” (Doc. 68-5 at 6). The
only statement to the defendant that the quoted material clearly captures is, “Hey, there’s
a guy out there.” The rest appears to be Loman telling the investigator what Collar
looked like and musing to himself about his connection to the noise.
movements and closed the gap between them, causing the defendant to abandon
As the defendant exited the patio to the unpaved area beyond, he turned 90
degrees (toward the street) and picked up his pace in an effort to re-establish some
distance between himself and Collar. He made another 90-degree turn parallel to
the building and continued his accelerated pace over a grassy, sloping yard with
oak tree roots, moving backward while keeping his eyes and firearm toward
Collar. Collar also accelerated, beginning with a long, lunging step seen on the
video.14 The defendant accelerated about a second before Collar responded, but
Collar, following the defendant’s path, began closing the gap the defendant’s head
start had created.15 Throughout the defendant’s retreat, he kept yelling, “Get
down,” and Collar kept repeating, “Shoot me” and “Kill me” while ignoring the
defendant’s orders. When he was shot, Collar was about five feet from the
defendant,16 about three feet from the defendant’s gun,17 and advancing on the
defendant at about 8 1/3 feet per second (or over 5½ miles per hour).18
This is when the 50-foot, six-second segment referenced in Part I.A.2.ii
The plaintiffs suggest the Court, in its order on their Rule 56(d) motion, has
already found that Collar only “maintain[ed] the distance between him[self] and” the
defendant. (Doc. 67 at 5; id. at 32 & n.24; Doc. 92 at 11 n.4). The Court has made no
such finding. Instead, the Court stated only that, based on the video alone (which fails to
capture most of the final six seconds and therefore “is limited in scope and largely
inconclusive”), it could be that the defendant “simply maintain[ed] contact” with the
defendant. (Doc. 43 at 10, 12). The defendant’s testimony, and a careful observation of
the delay captured by the video between his acceleration and that of Collar, establishes
that the defendant’s lead grew to approximately ten feet before Collar responded, then
shrank to about five feet by the time the defendant fired.
The plaintiffs appear to accept this figure, (Doc. 67 at 11), but in their first
motion to strike they note in passing that the defendant initially told investigators Collar
was five to ten feet away. (Doc. 65 at 11). The video conclusively disproves the higher
The plaintiffs admit, and the video confirms, that the defendant’s arms were
“fully extended” toward Collar. (Doc. 81 at 3).
The defendant fired because, under the circumstances, he believed Collar
would overtake him any second, gain control of his gun, and use the gun against
the defendant. The defendant did not know when backup would arrive, he did not
know if Collar had accomplices, and he did not know that what had violently
shaken the police building less than a minute earlier was not weaponry.19 From
the moment the defendant first saw Collar until the shot was fired, 25 seconds
Collar was 5’ 9” and a muscular 148 pounds; the defendant is 5’ 11” and
173 pounds. When he fired, the defendant realized that Collar was naked,
unarmed, and impaired in some respect. At no point during the encounter did
Collar touch the defendant, reach for his gun, or verbally threaten him with
violence. The defendant did not purport to arrest Collar and did not tell Collar he
would shoot him if he did not stop.
The plaintiffs argue the defendant’s testimony as to speed is incredible because,
in order for the distance between him and Collar to have increased (from two feet at the
end of the patio to five feet when Collar was shot), the defendant would have to have
been traveling 2.5 to 5 times faster than Collar. (Doc. 66 at 8-9). The argument
erroneously assumes that Collar accelerated at the same instant the defendant did (rather
than, as the evidence reflects, about a second later), but it is wrong on its own terms.
Were the plaintiffs’ premise correct, the defendant would have covered 53 feet in the
same time Collar covered 50 feet, a ratio of less than 1.1:1, not 2.5:1 or 5:1.
The plaintiffs also complain vaguely that the defendant’s testimony as to distance
(a predicate to the calculation of speed) is “in direct contravention” of what the video
shows. (Doc. 65 at 10). This is a curious position, given that the plaintiffs in the same
paragraph correctly note that the video does not actually depict most of the defendant’s
path. (Id.). The video patently is not in tension with the defendant’s testimony as to a
The plaintiffs suggest the defendant could not reasonably have believed
weaponry was involved, because Loman had said the noises weren’t gunshots. (Doc. 84
at 6). But of course the defendant could have so believed, as Officer Parrish also
Collar, shot in the chest, went to the ground. After about seven seconds, he
stood back up, crying out, “Shoot me again!” several times before wandering away
II. Fourth Amendment Claim.
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he
burden is first on the defendant to establish that the allegedly unconstitutional
conduct occurred while he was acting within the scope of his discretionary
authority.” Harbert International v. James, 157 F.3d 1271, 1281 (11th Cir. 1998).
The burden then shifts to the plaintiff to show that the defendant’s conduct
“violated a clearly established statutory or constitutional right.” Grayden v.
Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). The plaintiffs “do not contest” that
the defendant was acting within the scope of his discretionary authority, and they
acknowledge that this shifts the burden to them. (Doc. 67 at 15).20
The lower courts have discretion whether to address first the existence of a
constitutional violation or the clearly established nature of the right allegedly
violated. Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012). To avoid “the often more difficult
question whether the purported right exists at all,” id., the Court addresses the
latter issue first.21
See, e.g., Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir.
2009) (when it is “undisputed … that the [defendants] were acting within their
discretionary authority,” a court can deem that element of qualified immunity
“Because qualified immunity is only a defense to personal liability for
monetary awards resulting from government officials performing discretionary functions,
qualified immunity may not be effectively asserted as a defense to a claim for declaratory
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202
(2001). “In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle, 132 S. Ct. at 2093 (internal
quotes omitted). “The salient question … is whether the state of the law at the
time of an incident provided fair warning to the defendants that their alleged
conduct was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). To
attain that level, “the right allegedly violated must be established, not as a broad
general proposition, … but in a particularized sense so that the contours of the
right are clear to a reasonable official.” Reichle, 132 S. Ct. at 2094. The law is
clearly established if any of three situations exists.
“First, the words of the pertinent federal statute or 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.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir.
2002) (emphasis omitted). The requisite fair and clear notice can be given without
case law only “[i]n some rare cases.” Williams v. Consolidated City of
Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003).
“Second, ... 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.” Vinyard, 311 F.3d at 1351. “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,
or injunctive relief.” Ratliff v. DeKalb County, 62 F.3d 338, 340 n.4 (11th Cir. 1995);
accord Swint v. City of Wadley, 51 F.3d 988, 1001 (11th Cir. 1995); D’Aguanno v.
Gallagher, 50 F.3d 877, 879 (11th Cir. 1995). Thus, had the plaintiffs sought declaratory
or injunctive relief, the Court could not bypass the question whether a constitutional
violation occurred. But the plaintiffs seek no such relief. (Doc. 1 at 12). The Court has
and expresses no opinion whether the defendant would be entitled to summary judgment
based on the absence of a constitutional violation.
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.” Id. “[I]f a broad principle in case law is to
establish clearly the law applicable to a specific set of facts facing a government
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 official acted.” Id. (internal
quotes omitted). “[S]uch decisions are rare,” and “broad principles of law are
generally insufficient to clearly establish constitutional rights.” Corey Airport
Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11th Cir. 2009).
“Third, [when] the Supreme Court or we, or the pertinent state supreme
court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if
“the circumstances facing a government official are not fairly distinguishable, that
is, are materially similar [to those involved in the opinion], the precedent can
clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52.
When case law is utilized to show that the law was clearly established, the
plaintiff must “point to law as interpreted by the Supreme Court [or] the Eleventh
Circuit,” and such case law must pre-date the challenged conduct. Mercado v.
City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005); accord Coffin v. Brandau,
642 F.3d 999, 1013 (11th Cir. 2011) (en banc). Moreover, “[t[he law cannot be
established by dicta[, which] is particularly unhelpful in qualified immunity cases
where we seek to identify clearly established law.” Santamorena v. Georgia
Military College, 147 F.3d 1337, 1342 n.13 (11th Cir. 1998) (internal quotes
The parties agree that the defendant’s use of force is to be measured against
the objective reasonableness standard of the Fourth Amendment. (Doc. 58 at 2122: Doc. 67 at 20-21). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them
….” Graham v. Connor, 490 U.S. 386, 398 (1989). “The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “The
calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force that is necessary in a
particular situation.” Id. at 396-97.
According to the plaintiffs, the issue is whether it was clearly established in
October 2012 “that use of deadly force, without warning, against a naked,
unarmed, impaired minor suspect who was committing no serious crime, was not
resisting, was not placed under arrest and who threatened no harm of serious
injury or death to the officer, is unreasonable and excessive.” (Doc. 67 at 19).
However, the evidence viewed most favorably to the plaintiffs fails to support the
proposition that Collar posed no threat of death or serious injury to the defendant.
Nor does the plaintiffs’ statement of the issue take into account other
circumstances of this case, including what the plaintiffs themselves characterize as
Collar’s “bizarre” and “irrational” behavior.22
It is clear that Collar was a naked, unarmed, impaired minor, and it may be
assumed for present purposes that he was committing no serious crime. It is also
clear the defendant did not tell Collar he would shoot him if he did not halt, but
that cannot be significant given that the plaintiffs themselves deem it
“inexplicabl[e]” that the defendant would expect Collar to comply with his
commands. (Doc. 67 at 10, 26). And while he may not technically have been
resisting arrest (because the defendant was not attempting to arrest him), Collar
was plainly non-compliant with repeated lawful orders to get on the ground,
instead continuing his advance on the defendant.
That relentless advance, despite orders to stop, created an obvious and
immediate threat to the defendant’s life and safety. The defendant retreated the
The plaintiffs admit that Collar’s behavior in the defendant’s presence was
“bizarre.” (Doc. 64 at 7).
full length of the patio, but Collar pursued him and closed the gap to two feet, with
no indication he would not come closer. The defendant accelerated his retreat
after leaving the patio, but Collar then accelerated as well, closing the gap to about
five feet – a distance he was covering in barely half a second. Moreover, Collar
had closed to within about three feet of the defendant’s firearm and was in position
to grab it with a single lunge. The defendant – ignorant of when backup might
arrive and moving rapidly backward over uneven terrain in the dark of night while
keeping his eyes and gun on Collar (who could easily sustain and even further
increase his speed, as the defendant could not) – was running out of options.
The plaintiffs argue the defendant could not reasonably have believed
Collar was a threat to harm him, because his only words were, “Shoot me” and
“Kill me,” proving that Collar was a threat only to himself. Moreover, they say,
Collar never reached for the defendant or his gun, not even when he came within
two feet of the defendant at the end of the patio. (Doc. 67 at 10-11, 27-32). But
the excited, energetic and muscular Collar continued to advance on the defendant
(and at an increasingly brisk pace), he continued to ignore orders to get on the
ground, and he continued to tell the defendant to shoot him and kill him – words
that reflected an obsession with the defendant’s weapon and with extreme
violence. The defendant had also witnessed other manifestations of Collar’s
irrationality and unpredictability – in his nakedness, his pronounced and
seemingly aggressive foot and arm movements, and his momentary partial
compliance (when he went to his knees for an instant before rising again). Finally,
the defendant was faced with a sudden, unprecedented crisis, with no time to
reflect or plan a strategy, much less perform a psychological assessment to
confirm whether his irrational pursuer was harmless.
As noted, the test of reasonableness does not rest on hindsight but on the
perspective of a reasonable officer on the scene, in possession of the facts and
circumstances that confronted the defendant. It therefore does not matter what
Collar “really” would or would not have done, or whether (as the plaintiffs assert)
Collar was not trying to threaten the defendant but only making himself an easy
target; what matters is whether a reasonable officer could or would have
understood the facts and circumstances of the situation to reflect a threat of death
or serious injury.23 For the reasons given above, that question must be answered
in the affirmative.24
Based on the evidence as viewed most favorably to the plaintiffs, the
question becomes whether, in October 2012, it was clearly established that using
deadly force against a suddenly appearing, naked, unarmed, impaired minor – who
posed an immediate threat of death or serious physical injury in that he was
behaving irrationally, jumping and waving his arms, advancing swiftly on a
retreating officer, repeatedly telling the officer to shoot him and kill him, and
ignoring repeated orders to get on the ground – without first issuing a warning the
minor would have ignored, would represent constitutionally excessive force.
The plaintiffs do not suggest that the language of the Fourth Amendment
itself clearly establishes that the defendant’s use of force was unconstitutional.
E.g., Penley v. Eslinger, 605 F.3d 843, 852 (11th Cir. 2010) (“The relevant
question is whether a reasonable officer in [the defendant’s] shoes would have believed
that Mr. Penley was gravely dangerous.”); Troupe v. Sarasota County, 419 F.3d 1160,
1168 (11th Cir. 2005) (“Even if in hindsight the facts show that the SWAT Team could
have escaped unharmed, a reasonable officer could have perceived that Hart posed a
threat of serious physical harm.”); Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir.
2005) (similar); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (11th Cir.
2003) (“An objectively reasonable officer would have perceived McCormick as a
Officer Parrish, while running to the scene from the parking lot in response to
the defendant’s radio call, observed the defendant quickly backing up across the yard as
Collar “charged” him. The plaintiffs, who insist that the term connotes an intention to
“attack” and inflict “serious or deadly harm,” (Doc. 67 at 27, 32), admit that “it might
have appeared” to Officer Parrish (who was “only a few feet away” when the defendant
fired) that Collar was charging the defendant. (Id. at 26 n.19; Doc. 81 at 5).
Instead, they point to four Eleventh Circuit opinions they believe support their
In Salvato v. Miley, 790 F.3d 1286 (11th Cir. 2015), the unarmed decedent
was suspected of yelling at passing cars. He was initially cooperative but then
resisted arrest, hitting one officer twice and striking the defendant in the head,
knocking her down. The decedent retreated ten to fifteen feet from the defendant,
who then shot him in the abdomen without warning; the decedent died at the scene
from internal bleeding. Id. at 1290-91. Because the decedent “was retreating,
apparently unarmed, and outside of striking distance,” he “was not an ‘immediate
threat.’” Id. at 1293. The Court upheld the denial of qualified immunity because
existing precedent26 clearly established that “[u]sing deadly force, without
warning, on an unarmed, retreating suspect is excessive.” Id. at 1294.
Salvato cannot clearly establish the unconstitutionality of the defendant’s
use of force because it is premised on the victim being in retreat and not posing an
immediate threat to the officer or others. Collar was not in retreat, was rapidly
advancing on the retreating defendant, and was in striking distance; for that and
other reasons previously explained, he posed an immediate threat of death or
serious injury to the defendant. Salvato holds that Y conduct (using deadly force)
is unconstitutional in Z circumstances (without warning on an unarmed, retreating
suspect). In the words of Vinyard, the circumstances of Salvato are fairly
distinguishable and thus incapable of clearly establishing that the defendant’s use
of force was unconstitutional.
In Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985) (en banc), the
defendant officers came to the decedent’s home to investigate a complaint and
The plaintiffs also rely on lower court cases and appellate cases from other
Circuits. (Doc. 67 at 20). Since the law cannot be clearly established by such authorities,
the Court does not discuss them.
The date of the incident was July 6, 2012. Salvato v. Blair, 2014 WL 1899011
at *1 (M.D. Fla. 2014).
ordered the decedent to their vehicle for questioning. The decedent “initially put
up some resistance by attempting to flee and then flailing his arms about, but these
efforts were ineffectual because of his drunken condition.” Id. at 1496-97. The
officers began beating the decedent about the head. The decedent broke free of
their hold, and in the ensuing scuffle one of the officers shot him in the stomach,
killing him. Id. The Eleventh Circuit ruled that a Fourth Amendment claim was
presented, noting that, “[g]iven his small size, intoxicated state, and lack of a
weapon, [the decedent] clearly posed little threat to [the officers’] safety when
they initially began escorting him to the patrol car.” Id. at 1503. By his
ineffectual, drunken flailing, the diminutive defendant “did little to provoke the
police officers to beat him,” id., and it was this beating that prompted the
decedent’s “efforts to escape the officers’ further physical abuse.” Id. The
shooter expressed fear of bodily injury from the decedent because he “was
apparently free and moving toward him,” id. at 1501, but this fear was “the fear of
retaliation against his own unjustified physical abuse,” which fear “should not
preclude liability for a harm which largely resulted from his own improper use of
his official power.” Id.
Gilmere cannot clearly establish the unconstitutionality of the defendant’s
use of force because it is premised on the officer’s fear of retaliation for his
immediately preceding unconstitutional beating of the decedent. The defendant
did not exert force against Collar before the shooting, much less unconstitutional
force. Like Salvato, Gilmere at best establishes that using deadly force is
unconstitutional in certain circumstances, which circumstances are not present
In Morton v. Kirkwood, 707 F.3d 1276 (11th Cir. 2013), an officer “shot an
unarmed man in a stationary vehicle while having no reason to believe that the
man would place anyone’s safety in danger.” 707 F.3d at 1282. Morton cannot
clearly establish the unconstitutionality of the defendant’s use of force because it
is premised on the absence of any threat to anyone’s safety, a circumstance
decidedly not present in this case.
Finally, in Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005), the
defendant officers responded to an attempted suicide call. They found the plaintiff
sitting on the kitchen floor, crying. He was holding a knife with both hands,
pointed at his heart, and a telephone cord was wrapped around his neck. The
officers ordered the plaintiff to drop the knife. He did not do so, but neither did he
make any threatening move toward the officers. Within 30 seconds of ordering
the plaintiff to drop the knife, and without warning him, the officers fired a baton
from a distance of six feet with the energy of a professionally-thrown baseball.
The baton fractured the plaintiff’s skull and resulted in brain injuries. Id. at 115455. The Court ruled that, because the plaintiff was not committing a crime, was
not resisting arrest, and did not pose an immediate threat to the officers, the
officers (if they aimed for the head, as the evidence suggested) used excessive
force. Id. at 1157-58. Mercado cannot clearly establish the unconstitutionality of
the defendant’s use of force because it is premised on the victim posing no threat
to the officers. Again, that key circumstance is absent here.
The plaintiffs turn to a blanket criticism of the defendant’s approach in the
moments preceding the shooting. They say the defendant should not have left the
station at all, or at least not alone, before backup arrived; that he should have
assessed the situation and formulated a plan before leaving the building; that he
should not have exited the building with firearm drawn; that he should have
soothed Collar rather than yelling commands at him; that he should have holstered
his weapon in order to de-escalate the situation, resorting to non-lethal weapons if
necessary; that he should have stalled Collar until backup arrived; and that he
should have “render[ed] aid and assistance” to Collar. (Doc. 67 at 3, 26-27, 31).
The complaint, however, limits their federal claim to “Defendant Austin’s actions
in shooting and killing” Collar, which actions are identified as the ones violating
Collar’s Fourth Amendment rights. (Doc. 1 at 11). Because the defendant’s
previous actions are not made the basis of the constitutional claim, the plaintiffs
cannot rely on them now to rescue that claim.
Even if it were properly before the Court, the plaintiffs have identified no
Eleventh Circuit or Supreme Court authority clearly establishing that the
defendant’s conduct in these particulars violated the Constitution. Indeed, they
have cited no authority at all. The Court, however, has recently addressed a
similar issue. In Rachel, the plaintiff asserted she could base a Fourth Amendment
claim on an officer’s “provoking a confrontation with an emotionally disturbed
felon.” 2015 WL 3562273 at *9. The Court noted the absence of any binding
authority clearly establishing such a proposition. On the contrary, the Court
pointed to City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015), in
which the Supreme Court “canvassed the case law and concluded that ‘the
officers’ failure to accommodate [the plaintiff’s] illness [did not] violat[e] clearly
established law.’” Rachel, 2015 WL 3562273 at *10 (quoting Sheehan, 135 S. Ct.
at 1775. Even under the Ninth Circuit law at issue in Sheehan, a plaintiff “cannot
establish a Fourth Amendment violation based merely on bad tactics that result in
a deadly confrontation that could have been avoided.” 135 S. Ct. at 1777 (internal
In summary, it was not clearly established in October 2012 that the
defendant’s use of force violated Collar’s constitutional rights. Accordingly, the
defendant is entitled to qualified immunity as to the plaintiffs’ constitutional
claim, and his motion for summary judgment as to Count One is due to be granted
on this basis. The plaintiffs’ motion for partial summary judgment as to qualified
immunity is thus due to be denied, and their motion for partial summary judgment
as to liability under Count One is due to be denied as moot (since the defendant
prevails regardless of whether his conduct violated Collar’s constitutional rights).
III. Wrongful Death Claim.
Every peace officer … who is employed or appointed pursuant
to the Constitution or statutes of this state, whether appointed or
employed as such peace officer by the state or a county or municipality
thereof, … and whose duties include the enforcement of … the
criminal laws of this state, and who is empowered by the laws of
this state … to arrest and to take into custody persons who violate,
or who are lawfully charged by warrant, indictment, or other lawful
process, with violations of, the criminal laws of this state, shall at all
times be deemed to be officers of this state, and as such shall have
immunity from tort liability arising out of his or her conduct in
performance of any discretionary function within the line and scope
of his or her law enforcement duties.
Ala. Code § 6-5-338(a). “[W]hether a qualified police officer is due § 6-5-338(a)
immunity is now judged by the restatement of State-agent immunity articulated by
Ex parte Cranman, 792 So. 2d 392 (Ala. 2000).” Blackwood v. City of Hanceville,
936 So. 2d 495, 504 (Ala. 2006) (internal quotes omitted).
“A State agent asserting State-agent immunity bears the burden of
demonstrating that the plaintiff’s claims arise from a function that would entitle
the State agent to immunity.” Ex parte Kennedy, 992 So. 2d 1276, 1282 (Ala.
2008) (internal quotes omitted). “Should the State agent make such a showing, the
burden then shifts to the plaintiff to show that one of the two categories of
exceptions to State-agent immunity recognized in Cranman is applicable.” Id.
The plaintiffs concede that the defendant has met his burden. (Doc. 67 at 35).
The burden thus shifts to the plaintiffs to demonstrate an exception to the
defendant’s presumptive immunity.
The two Cranman exceptions are as follows:
(1) when the Constitution or laws of the United States, or
the Constitution of this State, or laws, rules, or regulations of this
State enacted or promulgated for the purpose of regulating the
activities of a governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a
mistaken interpretation of the law.
792 So. 2d at 405. In somewhat confusing and disjointed fashion, the plaintiffs in
their brief appear to invoke several of these possibilities. First, they argue the
defendant violated the Fourth Amendment. Second, they argue the defendant
violated Alabama law, specifically, Section 13A-3-23. Third, they argue the
defendant violated an Alabama rule or regulation, specifically, the University use
of force policy (“the Policy”). Fourth, they assert indiscriminately that the
defendant “acted willfully, maliciously, fraudulently, in bad faith, beyond his or
her [sic] authority, or under a mistaken interpretation of the law.” (Doc. 67 at 3640).
The threshold difficulty with the plaintiffs’ approach is that their complaint
expressly limits the defendant’s loss of immunity to his having “acted beyond his
authority as a sworn police officer by failing to discharge his duties in a manner
consistent and in compliance with the policies, procedures, and rules of the USA
Police Department with respect to the use of non-lethal and deadly force, all of
which he violated.” (Doc. 1 at 14). No other basis for stripping the defendant of
his immunity is alleged, and none is properly before the Court. But the plaintiffs
would fare no better even had they not by their pleading disavowed any ground for
denying state-agent immunity other than the defendant having acted beyond his
The plaintiffs assume that a violation of the Constitution of itself strips a
defendant of state-agent immunity. (Doc. 67 at 36). That, however, is not what
Cranman says. Instead, Cranman establishes that “a State agent shall not be
immune from civil liability” when the Constitution “require[s] otherwise.” 792
So. 2d at 405 (emphasis omitted). The Constitution obviously does not “require”
the stripping of immunity whenever a defendant has violated it, else there would
be no such thing as qualified (or absolute) immunity. Qualified immunity does not
violate the Constitution but is consistent with it. E.g., Nixon v. Fitzgerald, 457
U.S. 731, 747 (1982) (“Our decisions concerning the immunity of government
officials from civil damages liability have been guided by the Constitution, federal
statutes, and history.”). Because, as discussed in Part II, the defendant is entitled
to qualified immunity, the Constitution does not require that he be denied stateagent immunity.
Similarly, the plaintiffs assume that a violation of any Alabama law of itself
strips a defendant of state-agent immunity. (Doc. 67 at 37). Again, that is not
what Cranman provides. Instead, a state agent will not be immune when the “laws
… of this State enacted or promulgated for the purpose of regulating the activities
of a governmental agency require otherwise ….” 792 So. 2d at 405 (emphasis
added). Section 13A-3-23 is a state law, but it was not enacted for the purpose of
regulating the activities of a governmental agency; it is simply Alabama’s generic
self-defense statute, applicable to all “person[s],” not governmental agencies.
This leaves for consideration only the preserved issue regarding the
Policy.27 In their brief, the plaintiffs describe the Policy as a “rule or regulation”
for purposes of the first Cranman exception. (Doc. 67 at 37, 39). The Policy,
however, is not a rule or regulation “of this State” but only an internal policy of
the University police department. The plaintiffs have not attempted to
As noted, the complaint asserts that the Policy should be analyzed under the
“acting beyond authority” exception to state-agent immunity. “One of the ways in
which a plaintiff can show that a State agent acted beyond his or her authority is
by proffering evidence that the State agent failed to discharge duties pursuant to
detailed rules or regulations, such as those stated on a checklist.” Kennedy, 992
So. 2d at 1282-83 (internal quotes omitted); accord Giambrone v. Douglas, 874
The plaintiffs’ mere recitation of a laundry list of Cranman exceptions (from
willfulness through mistaken interpretation of the law), (Doc. 67 at 36), presents nothing
for review. E.g., T.P. ex rel. T.P. v. Bryan County School District, 792 F.3d 1284, 1291
(11th Cir. 2015) (“[D]istrict courts should not be expected to construct full blown claims
from sentence fragments ….”) (internal quotes omitted); Transamerica Leasing, Inc. v.
Institute of London Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005) (“[A] passing
reference to an issue in a brief [is] insufficient to properly raise that issue.”).
So. 2d 1046, 1052 (Ala. 2003).28 Mere “guidelines” are not enough to preclude
immunity, but only “rules” that “must be followed by an officer.” Ex parte
Brown, ___ So. 3d ___, 2015 WL 3367665 at *9 (Ala. 2015) (emphasis in
original). When a policy leaves matters to the agent’s discretion, it will not
support a denial of immunity. E.g., id.
As relevant here, the Policy provides that “[i]t is the policy of the
University of South Alabama Police Department to use deadly force only when …
[t]he officer reasonably believes that his life is in jeopardy and that deadly force is
immediately necessary to preserve the officer’s life, or prevent serious bodily
injury.” (Doc. 68-2 at 3). The Policy identifies the “Elements Necessary in the
Use of Deadly Force” as intent, opportunity and ability. (Id.). That is, “the person
intends to seriously injure or kill the officer or another person,” he “is in range to
seriously injure or kill the officer or another person,” and he “has the means to
seriously injure or kill the officer or another person.” (Id.). “ALL THREE MUST
BE PRESENT IN A LEGAL DEADLY FORCE SITUATION.” (Id.).
The plaintiffs focus on the word, “MUST,” which they interpret as making
the presence of these three elements “mandatory” before deadly force is employed.
(Doc. 67 at 39). But they overlook that the decision whether to use deadly force is
left to whether the officer “reasonably believes” that his life is in jeopardy and
“reasonably believes” deadly force is immediately necessary. Thus, the three
elements need not literally be present, as long as the officer reasonably believes
they are present.29
The formation of a reasonable belief necessarily encompasses the exercise
of discretion in evaluating and weighing – often, as here, in a mere instant – the
“[T]he regulations need not be in the form of an actual checklist ….” Ex parte
Lawley, 38 So. 3d 41, 48 n.1 (Ala. 2009).
For example, the plaintiffs do not (and could not credibly) argue that the Policy
forbids an officer’s use of deadly force against someone pointing a gun at him simply
because it later turns out the gun was unloaded or incapable of firing.
many and infinitely varied circumstances that may be presented in any given
situation. While it requires a reasonable belief in the danger of and need for
deadly force, and while it identifies three things an officer must reasonably believe
before he reasonably concludes his life is in jeopardy and that deadly force is
immediately necessary to save it, the Policy does nothing to eliminate the officer’s
discretion in identifying and assessing the circumstances that will weigh into those
calculations. It does not, for example, forbid an officer to use deadly force against
someone apparently on drugs or who is presently unarmed.
Thus, while the Policy to some degree cabins an officer’s discretion to use
deadly force, it does eliminate his discretion in determining whether he reasonably
believes such force is justified. The Policy therefore does not constitute the kind
of “detailed rule or regulation” the violation of which could strip the defendant of
In summary, the defendant is entitled to state-agent immunity.
Accordingly, his motion for summary judgment as to Count Two is due to be
granted, and the plaintiffs’ motion for partial summary judgment as to state-agent
immunity is due to be denied.
For the reasons set forth above, the defendant’s motion for summary
judgment is granted. The plaintiffs’ motion for partial summary judgment as to
immunity is denied, and their motion for partial summary judgment as to liability
under Count One is denied as moot. Judgment shall be entered accordingly by
DONE and ORDERED this 15th day of September, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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