Garber v. City Of Boynton Beach et al
Filing
101
ORDER GRANTING DEFENDANT CITY OF BOYNTON BEACHS MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT OFFICERS MOTION FOR SUMMARY JUDGMENT, granting 78 Motion for Summary Judgment; denying 80 Motion for Summary Judgment. Signed by Judge Robin L. Rosenberg on 7/29/2019. See attached document for full details. (pcs)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:18-CV-80576-ROSENBERG/REINHART
HARVEY GARBER, M.D.,
Plaintiff,
v.
CITY OF BOYNTON BEACH, et al.,
Defendants.
_______________________________/
ORDER GRANTING DEFENDANT CITY OF BOYNTON
BEACH’S MOTION FOR SUMMARY JUDGMENT AND DENYING
DEFENDANT OFFICERS’ MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant City of Boynton Beach’s Motion for
Summary Judgment [DE 78] and the Motion for Summary Judgment of Defendant Officers Janelle
Jumelles, John Dunlop, Even Esteves, and Peter Zampini [DE 80]. The Court has carefully
reviewed the Motions, Plaintiff Dr. Harvey Garber’s Responses thereto [DE 86 and 88],
Defendants’ Replies [DE 93 and 96], the arguments of the parties during the hearing held on June
4, 2019, and the entire record, and is otherwise fully advised in the premises.
For the reasons set forth below, the City’s Motion for Summary Judgment [DE 78] is
granted. The Motion for Summary Judgment of Officers Jumelles, Dunlop, Esteves, and Zampini
[DE 80] is denied.
I.
FACTUAL BACKGROUND
On June 5, 2017, Officers Jumelles and Esteves responded to a critical-life-support call for
a residence in Boynton Beach. DE 81 at 1; DE 87 at 1. They entered the residence, were directed
to an upstairs bathroom, and discovered a deceased female in the bathtub and drug paraphernalia
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nearby. DE 81 at 1-2; DE 87 at 1. The bathroom became an active crime scene. DE 81 at 2;
DE 87 at 1.
Dr. Garber, the decedent’s father, arrived at the residence, was met by Officer Dunlop,
entered the residence, and went upstairs. DE 81 at 2-3; DE 87 at 1-2. Officer Dunlop told him not
to step into the bathroom. DE 81 at 3; DE 87 at 2. Dr. Garber nevertheless stepped into the
bathroom, and Officers Jumelles, Esteves, and Dunlop physically pulled him out of the bathroom
while Dr. Garber stated “take your hands off me” and acknowledged that he knew that it was a
crime scene. DE 81-3 at 19:48-20:07. Officer Dunlop explained to Dr. Garber that he would be
allowed into the bathroom after the scene was processed. Id. at 20:08-:23. Officer Dunlop
permitted Dr. Garber to look into the bathroom without stepping inside after Dr. Garber stated he
would not go into the bathroom. Id. at 20:32-21:05. Dr. Garber then sat on the floor immediately
outside of the bathroom for several minutes, at times covering his face with his hands or making
telephone calls. Id. at 21:05-26:49.
When crime scene investigators arrived at the residence, Officer Jumelles asked Dr. Garber
to move to a couch in another area. Id. at 26:33-:52. Dr. Garber stood up from the floor but
insisted on standing in the hallway outside of the bathroom, stating “I’d rather have this space than
you have this space.” Id. at 26:48-27:08. Dr. Garber stood in the hallway for several minutes,
during which time he occasionally looked into the bathroom and officers obtained information
from him. Id. at 27:08-31:23. Officer Zampini arrived on the scene. Id. at 27:28.
Dr. Garber eventually moved toward another room and answered a telephone call. Id. at
31:23-:27. Officer Dunlop asked him not to go into the room because it needed to be processed.
Id. at 31:24-:28. Officer Zampini asked Dr. Garber to move further down the hallway. Id. at
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31:28-:30. Dr. Garber began to move down the hallway, and Officer Jumelles placed her hand on
Dr. Garber’s back. Id. at 31:30-:33; DE 89-2 at 29:18-:22. Officer Jumelles would later testify
that she placed her hand “softly on his back, no pressure,” DE 81-1 at 64, while Dr. Garber would
testify that she “gave [him] a shove” and that it “seemed like she pushed me,” DE 81-12 at 97.
Dr. Garber stated “don’t push me” and turned toward Officer Jumelles. DE 81-3 at 31:34-:35;
DE 89-2 at 29:22-:24. Officer Jumelles testified that Dr. Garber “took an aggressive stance.”
DE 81-1 at 64. Officer Jumelles took her hand off of Dr. Garber’s back, took a step backward,
and said “okay.” DE 81-3 at 31:35-36; DE 89-2 at 29:24-26.
Officer Zampini directed Dr. Garber to “go,” and Dr. Garber turned toward him and
responded “shut up.” DE 81-3 at 31:35-:38; DE 89-2 at 29:24-26. Officer Zampini would later
testify that Dr. Garber was “right in front of” him, that he “could see that [Dr. Garber] was tensing,”
and that Dr. Garber was “acting irrational,” was “dug in,” and “wasn’t moving.” DE 81-9 at 30.
Officer Zampini placed a hand on Dr. Garber’s upper arm. DE 89-2 at 29:26-:27. At that
point, a struggle between Dr. Garber and several of the officers began as they moved down the
hallway, during which Dr. Garber cried “you assaulted me” and “I’ll be pressing charges against
you” and Officer Zampini instructed him to “have a seat on the couch.” DE 81-3 at 31:38-:59;
DE 89-2 at 29:27-:48. According to Dr. Garber and a resident of the home who was present at the
time, Dr. Garber did not resist being moved down the hallway. DE 81-12 at 133; DE 87-1 at 22-23.
Officer Esteves testified that Dr. Garber was resisting and was pushing away from officers,
DE 81-4 at 52, and answered in response to interrogatories that he believed that Dr. Garber “posed
a threat to officer safety at the time as he completely disregarded our scene integrity and showed
no regard for authority.” DE 81-11 at 6. Officer Zampini testified that Dr. Garber was resisting
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and was being aggressive and noncompliant, DE 81-9 at 34, and answered in response to
interrogatories that he “felt an imminent threat by [Dr. Garber’s] aggressive demeanor and active
physical resistance coupled with his non-compliance of verbal commands.” DE 81-10 at 6.
Officer Jumelles instructed Dr. Garber to “sit down,” and he did not immediately comply.
DE 89-2 at 29:46. However, other officers were holding onto Dr. Garber at the time, and it is
disputed whether he was being held up, such that he was unable to comply. See DE 87 at 6.
Dr. Garber eventually became seated on the floor and was then made to lie on the floor on
his stomach while he cried “get off me,” “he assaulted me,” and “you broke my . . . glasses.”
DE 81-3 at 31:58-32:30; DE 89-2 at 29:48-30:18. According to Officer Esteves, Dr. Garber
became seated on the floor after he (Officer Esteves) “completed [a] leg sweep takedown” by
hooking his leg around Dr. Garber’s legs to “take the legs out from under him and bring him to the
floor.” DE 81-4 at 53. Dr. Garber acknowledged that Officer Esteves did a leg sweep to get him
onto the floor and testified that he “landed very hard on the ground” and that a person or multiple
people landed on top of him. DE 81-12 at 99-100, 103. Dr. Garber briefly grabbed onto a bedframe
while being made to lie on the floor. DE 81-3 at 32:05-08.
Dr. Garber testified that a person or multiple people were “kicking” him on his left leg in
“[t]he knee area,” but that he did not see the kicking because he “was face down” lying on his
stomach. DE 81-12 at 103-06. When asked who was kicking him, Dr. Garber testified: “I can’t
say. There were at least four people involved. There could have been five or six. I, I was in shock.
I had no idea.” Id. at 105. A resident of the home who witnessed the incident testified that officers
repeatedly kicked Dr. Garber “everywhere,” including in the leg, while he was standing to try to
get him onto the floor and that officers also kicked Dr. Garber while he was on the floor. DE 87-1
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at 23-27, 49-50, 57, 61-62. When asked which officers kicked Dr. Garber, the resident witness
stated “[i]t was a few officers” and gave the descriptions of a “female,” a “Spanish or darker male”
who may have been “Dominican or black,” and a “[p]lainclothed” officer, but also stated that all
of the officers that were present participated in the kicking. Id. at 26, 49-50. A second resident
witness testified that officers kicked Dr. Garber while he was on the floor. DE 87-2 at 25-27.
Officers Jumelles, Esteves, and Zampini began to place Dr. Garber’s hands in handcuffs
behind his back. DE 81-3 at 32:25; DE 89-2 at 30:13. The resident witnesses saw Dr. Garber
being handcuffed and did not see him resisting. DE 87-1 at 27, 51; DE 87-2 at 18-19. While the
officers were attempting to place Dr. Garber in handcuffs, he stated “I’m a surgeon, don’t break
my . . . wrist,” “I have a rotator cuff injury,” and “if you pull my wrist back, you’re going to break
my elbow.” DE 81-3 at 32:56-33:35; DE 89-2 at 30:46-31:24. The three officers eventually were
able to handcuff Dr. Garber with his hands behind his back using two sets of handcuffs. DE 81-3
at 33:19-34:03; DE 89-2 at 31:04-31:50. The two sets of handcuffs permitted Dr. Garber “to have
a wider spread behind his back” so that there would not be “as much stress on his shoulders.”
DE 81-5 at 38-39. While still lying on the floor, Dr. Garber stated “you hurt my wrist,” “you broke
my wrist for nothing,” and “call the medics.” DE 81-3 at 34:08-:17; DE 89-2 at 31:57-32:05.
Thereafter, Dr. Garber turned back to the officers and stated “you three guys, was it
necessary for you to take me down, I didn’t do anything.” DE 81-3 at 34:26-:29; DE 89-2 at
32:14-19. Officer Esteves stated “you put your hands on an officer,” to which Dr. Garber
responded “I didn’t touch him.” DE 81-3 at 34:30-:38; DE 89-2 at 32:20-27. Dr. Garber asked to
have the handcuffs removed or loosened, and Officer Jumelles denied the request, stating that he
had “plenty of space” in the handcuffs. DE 81-3 at 34:40-:52; DE 89-2 at 32:28-:42.
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Officers Jumelles and Dunlop raised Dr. Garber to a seated, and then to a standing, position.
DE 81-3 at 34:53-35:12; DE 89-2 at 32:38-:58. Officer Jumelles and an unnamed officer escorted
him through the upstairs hallway, down the stairs, and out of the residence to a police car. DE 81-3
at 35:39-36:37; DE 89-2 at 33:28-34:24. While being escorted, he stated “you’re hurting me, you
don’t need to do this” and “what’s wrong with you.” DE 81-3 at 35:57-36:02; DE 89-2 at
33:46-:52. Officer Jumelles and the unnamed officer searched Dr. Garber’s pockets. DE 81-3 at
36:45-37:22; DE 89-2 at 34:34-35:12. He was told to “have a seat” in the police car, and he got
into the car and was driven from the scene. DE 81-3 at 37:23-39:02; DE 89-2 at 35:13-36:54.
Dr. Garber was seen at a hospital, underwent x-rays, and was “medically cleared.”
DE 81-12 at 116-17; DE 81-13. He was given a notice to appear for resisting an officer without
violence, but that charge was later dismissed. DE 81-1 at 85; DE 81-12 at 128-29; DE 81-14.
Dr. Garber contends that, as a result of this incident, he suffered (1) a fracture to his left
knee for which he used a brace, crutches, and a cane for a time and which continues to cause pain
and discomfort; (2) back and spine injuries that include disc herniations and that cause pain,
spasms, and discomfort; (3) injuries to both hands and wrists including nerve injuries, causing
pain, numbness, swelling, weakness, and decreased range of motion; (4) reinjury of his right
rotator cuff, causing pain and decreased range of motion; (4) bruising to various parts of his body;
and (5) accelerated hypertension, depression, anxiety, insomnia, nightmares, and post-traumatic
stress disorder. DE 81-12 at 32-34, 40-42, 51, 53-54, 56-58, 58-59, 134, 136, 139; DE 81-15 at
5-7.
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II.
PROCEDURAL BACKGROUND
Dr. Garber filed this action in state court, and Defendants jointly removed the action to this
Court. DE 1. The Amended Complaint raises two counts under 42 U.S.C. § 1983. DE 34.
Dr. Garber brings a claim against Officers Jumelles, Dunlop, Esteves, and Zampini for use of
excessive force. Id. at 6-8. Dr. Garber also brings a claim against the City for deliberate indifferent
policies, practices, customs, training, and supervision. Id. at 8-12. The Defendants now seek
summary judgment on those claims.
III.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A factual dispute is ‘material’ if it would affect the outcome of the suit
under the governing law, and ‘genuine’ if a reasonable trier of fact court return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008). When deciding a summary judgment motion, a court views the evidence in the
light most favorable to the non-moving party and draws all reasonable inferences in that party’s
favor. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). The court does
not weigh conflicting evidence or make credibility determinations. Id. Upon discovery of a
genuine dispute of material fact, the court must deny summary judgment and proceed to trial.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012).
If the movant shows that there is no genuine dispute as to a material fact, the burden shifts
to the non-moving party to come forward with specific facts showing that there is a genuine issue
for trial. Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018). The non-moving party
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does not satisfy this burden “if the rebuttal evidence is merely colorable, or is not significantly
probative of a disputed fact.” Jones, 683 F.3d at 1292 (quotation marks omitted). The non-moving
party must “make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. (quotation marks
omitted); see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (stating that “the
nonmoving party must present evidence beyond the pleadings showing that a reasonable jury could
find in its favor” (quotation marks omitted)).
The evidence presented in this case includes videos from two body cameras. “When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
When a video of the pertinent events exists, the court must view the facts in the light depicted by
the video. Id. at 380-81. But where the video “does not clearly depict an event or action, and there
is evidence going both ways on it,” the court must accept the non-moving party’s version of what
occurred. Shaw, 884 F.3d at 1097 n.1.
IV.
A.
ANALYSIS
The City’s Motion for Summary Judgment
Dr. Garber brings a claim against the City under 42 U.S.C. § 1983, alleging that the City
has “developed and maintained long-standing, department-wide customs, law enforcement related
policies, procedures, customs, practices, and/or failed to properly train and/or supervise its officers
in a manner amounting to deliberate indifference to the Constitutional rights of [Dr. Garber] and
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of the public.” DE 34 at 8-12. Dr. Garber contends that this caused the violation of his right under
the Fourth Amendment to be free from an unreasonable seizure through excessive force. Id.
The City seeks summary judgment on Dr. Garber’s Monell claim. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978) (holding that a municipality is not liable under § 1983 for
an injury inflicted solely by an employee or agent but may be liable when the execution of the
municipality’s custom or policy inflicted the injury). DE 78. The City argues there is no record
evidence to show that it has an official policy or a custom or practice of deliberate indifference to
unlawful uses of force and that there is no evidence to show that it failed to adequately train or
supervise any of the officers involved in Dr. Garber’s arrest. The City cites to the report by its
expert in training standards, policy standards, use of force, and police practices, John G. Peters,
Jr., Ph.D. See DE 79-5. Dr. Peters opines that the City’s written policies were consistent with
generally accepted national standards and recommended guidelines, that Dr. Graber has not
provided evidence to support his deliberate-indifference claim, that statistical data shows that City
police officers use force infrequently, and that the officers involved in the incident with Dr. Garber
were acceptably trained and supervised.
Id. at 5-21.
The City contends, and Dr. Garber
acknowledges, that Dr. Garber’s criminology expert did not review the City’s policies or
procedures, did not testify as to any custom, and did not review any incidents other than
Dr. Garber’s arrest. DE 79 at 3-4; DE 89 at 2-3.
Dr. Garber responds by first conceding that there is no evidence to support his claims
related to policies and procedures and to failure to train and supervise. DE 88 at 1-2. He contends,
however, that a custom or practice of deliberate indifference to the use of excessive force can be
inferred from the circumstances of the assault on him and the fact that there was no post-incident
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investigation, citing Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). Dr. Garber also
points to data in Dr. Peters’s report showing that the City had 456 use-of-force reports between
2014 and 2017, as well as to 5 incidents of use of force between 2013 and 2017 that were identified
in the Amended Complaint. See DE 34 at 10-11; DE 79-5 at 12.
A municipality cannot be held liable under § 1983 based on a theory of respondeat superior
or vicarious liability. City of Canton v. Harris, 489 U.S. 387, 385 (1989). To impose liability on
a municipality under § 1983 for injuries that employees caused, a plaintiff must show that his
constitutional right was violated, that the municipality had a custom or policy that constituted
deliberate indifference to the constitutional right, and that the custom or policy caused the
constitutional violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing Monell,
436 U.S. 658). The requirement of a custom or policy ensures that the municipality “is held liable
only for those deprivations resulting from the decisions of its duly constituted legislative body or
of those officials whose acts may fairly be said to be those of the municipality.” Id. at 1290
(quotation marks omitted).
A custom is a practice that is so settled and permanent that it takes on the force of law.
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A policy is a decision that
is officially adopted by the municipality or created by an official of such rank that he could be said
to be acting on behalf of the municipality. Id. It generally is necessary to show a persistent and
widespread practice to demonstrate a custom or policy. McDowell, 392 F.3d at 1290; see also
Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011) (stating that a “pattern of similar
constitutional violations is ordinarily necessary” (quotation marks omitted)). Random acts and
isolated incidents normally are insufficient to establish a custom or policy. Denno v. Sch. Bd. of
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Volusia Cty., 218 F.3d 1267, 1277 (11th Cir. 2000). “Proof of a single incident of unconstitutional
activity is not sufficient to impose liability against a municipality.” Craig, 643 F.3d at 1310
(quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Although Dr. Garber contends that the particular circumstances of his arrest are sufficient
to show a custom or practice, the law of this Circuit provides otherwise. The single incident at
issue here is insufficient to demonstrate a persistent and widespread pattern of deliberate
indifference reaching the level of a settled custom or practice. See, e.g., id.; McDowell, 392 F.3d
at 1290; Sewell, 117 F.3d at 489.
Dr. Garber relies on Grandstaff, a case in which the Fifth Circuit concluded that a
preexisting policy of disregard of human life and safety could be inferred from a single incident
where multiple officers opened fire on a person suspected of a traffic violation and then opened
fire on and killed an innocent victim whom the officers mistook for the suspect, and where there
subsequently were no reprimands, discharges, admissions of error, or policy changes.
See Grandstaff, 767 F.2d at 165, 171. The Fifth Circuit has stated, however, that Grandstaff’s
holding is not widely applicable and is largely limited to the particular facts of that case. See, e.g.,
Snyder v. Trepagnier, 142 F.3d 791, 797 (5th Cir. 1998) (“Grandstaff has not enjoyed wide
application in this Circuit.”); Coon v. Ledbetter, 780 F.2d 1158, 1161 (5th Cir. 1986) (stating that
“Grandstaff affirmed a judgment against a Texas city on a highly peculiar set of facts” and that
the “Grandstaff panel emphasized the extraordinary facts of the case, and its analysis can be
applied only to equally extreme factual situations”).
Grandstaff is not binding precedent in this Circuit. Courts within this Circuit have rejected
arguments based on Grandstaff, distinguishing the facts in that case and declining to infer policies
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or customs from single incidents. See, e.g., MacMillan v. Roddenberry, No. 5:08-cv-351, 2010
WL 668281, at *1, 4 (M.D. Fla. Feb. 19, 2010) (distinguishing Grandstaff—which “involved the
use or excessive deadly force, [an] incompetent and catastrophic performance by the police
officers, and the complete lack of any disciplinary action or change in police policies following
the event”—from a single incident where officers tased a suspect several times and struggled with
him before arresting him (quotation marks omitted)), aff’d per curiam, 432 F. App’x 890 (11th
Cir. 2011); Rodriguez v. City of Fort Lauderdale, No. 07-61918-CIV, 2009 WL 10666890, at *1,
4 (S.D. Fla. Apr. 15, 2009) (distinguishing Grandstaff and concluding that evidence of a single
incident where officers pushed, kicked, and assaulted a suspect before handcuffing him was
insufficient to show a policy or custom); Daniel v. City of Tampa, No. 93-CIV-T-17C, 1995 WL
17064337, at *10 (M.D. Fla. Feb. 24, 1995) (questioning whether Grandstaff was “good law” in
light of more recent Monell liability caselaw, “even assuming it was correctly decided at the time,”
and distinguishing Grandstaff, where the entire city police force “participated in what the court
called a wild barrage of activity in attempting to apprehend a suspect,” from a situation where
several officers in a large police force engaged in allegedly unconstitutional activity (quotation
marks omitted)); see also Sosa v. Hames, 581 F. Supp. 2d 1254, 1279 (S.D. Fla. 2008) (“Courts
that have subsequently evaluated Grandstaff have been reluctant to extend that court’s application
of Monell liability in the absence of extraordinary and egregious circumstances.”).
The facts of this case, where four officers used physical but non-deadly force during an
arrest, are likewise readily distinguishable from the facts of Grandstaff, where an entire shift of
officers opened fire on and killed an innocent victim while pursuing a suspect for a traffic violation.
See Grandstaff, 767 F.2d at 165, 171. This case does not present the extraordinary and egregious
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circumstances to which the Fifth Circuit itself has limited its holding. Consistent with the
conclusions of other courts in this Circuit, this Court cannot conclude that a custom or practice of
deliberate indifference to the use of excessive force can be inferred from the circumstances of the
single incident involving Dr. Garber
The use-of-force incidents that Dr. Garber points to between the years 2013 and 2017 are
likewise insufficient to establish a custom or practice. First, the statistical data in Dr. Peters’s
report reflects an infrequent use of force during arrests. The City had 456 use-of-force reports
stemming from 291,547 arrests between 2014 and 2017, meaning that use of force was reported in
approximately 0.0016 percent of arrests during that period. DE 79-5 at 12. In addition, the number
of use-of-force reports alone does not demonstrate any use of excessive force. Cf. Brooks v. Scheib,
813 F.3d 1191, 1193-95 (11th Cir. 1987) (stating that the number of police complaints bears no
relation to their validity and reversing a jury verdict for a plaintiff on a Monell claim when the
plaintiff produced no evidence that past complaints of police misconduct had merit); Shehada v.
Tavss, 965 F. Supp. 2d 1358, 1373-74 (S.D. Fla. 2013) (stating that a list of complaints against
police officers, without more, is insufficient to create an issue of fact regarding a municipality’s
policy of inadequately investigating or disciplining police officers and that a plaintiff must present
some evidence from which to infer that complaints were meritorious).
Second, even if the five incidents that Dr. Garber identified in the Amended Complaint,
see DE 34 at 10-11, are presumed to have involved City police officers using excessive force, those
five isolated incidents over a five-year period do not show a persistent and widespread practice of
deliberate indifference to unlawful uses of force. See Denno, 218 F.3d at 1277 (stating that random
acts and isolated incidents normally are insufficient to establish a custom).
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Consequently, there is no genuine issue for trial as to whether the City had a custom or
practice of deliberate indifference to unlawful uses of force. The City is entitled to judgment as a
matter of law on Dr. Garber’s Monell claims. The City’s Motion for Summary Judgment [DE 78]
is granted.
B. The Officers’ Motion for Summary Judgment
Dr. Garber brings a claim against the Defendant officers under 42 U.S.C. § 1983, alleging
that the officers used unprovoked, excessive, and unreasonable force against him, in violation of
his Fourth Amendment right to be secure from an unreasonable seizure. DE 34 at 6-8. The officers
seek summary judgment on this claim based on qualified immunity. DE 80. The officers contend
that Dr. Garber’s arrest was lawful and that the force used against him during the arrest was
de minimis and, thus, cannot rise to the level of a constitutional violation. Alternatively, the
officers maintain that the force used against Dr. Garber was reasonable under the circumstances
given his resistance to the officers and his aggressive and hostile behavior. The officers assert that
Dr. Garber has not identified clearly established law showing that they acted unconstitutionally.
Dr. Garber responds that the officers brutally assaulted him when he posed no threat, had
not disobeyed or resisted them, was simply “rude” and “impolite,” and was distraught over his
daughter’s death. DE 86. He contends that the assault involved more than de minimis force and
was excessive and unreasonable under the circumstances. He compares this case to caselaw
holding that unprovoked force against a non-hostile and non-violent suspect violates the Fourth
Amendment, specifically citing to Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011).
“Qualified immunity shields government officials from individual-capacity suits for
actions taken while performing a discretionary function so long as their conduct does not violate a
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‘clearly established’ constitutional right.” Montanez v. Carvajal, 889 F.3d 1202, 1207 (11th Cir.
2018). This shield allows officials to carry out their discretionary duties without the fear of
personal liability or harassing litigation. Manners v. Cannella, 891 F.3d 959, 967 (11th Cir. 2018).
Qualified immunity protects from suit “all but the plainly incompetent or one who is knowingly
violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation marks
omitted). The applicability of qualified immunity presents a question of law for a court to decide.
Sims v. Metro. Dade Cty., 972 F.2d 1230, 1234 (11th Cir. 1992).
To be entitled to qualified immunity, an officer must establish that he was acting within his
discretionary authority during the incident. Manners, 891 F.3d at 967. The officer proves that he
acted within his discretionary authority “by showing objective circumstances which would compel
the conclusion that his actions were undertaken pursuant to the performance of his duties and
within the scope of his authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011)
(quotation marks omitted). Here, Dr. Garber does not dispute that officers were acting within their
discretionary authority during the investigation of his daughter’s death and his arrest. See DE 86
at 2; see also Grider v. City of Auburn, 618 F.3d 1240, 1268 (11th Cir. 2010) (stating that police
investigations and arrests are discretionary functions).
If an officer establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the officer violated a constitutional right that was clearly
established at the time of the incident. Montanez, 889 F.3d at 1207. These two components may
be analyzed in any order. Manners, 891 F.3d at 968. Both components must be shown for an
officer to lose qualified immunity. Fils, 647 F.3d at 1287.
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This Circuit uses two methods to determine whether a reasonable officer would know that
his conduct is unconstitutional. Id. at 1291. As to the first method, a right is clearly established
if, under the relevant caselaw at the time of the violation, “a concrete factual context exists so as
to make it obvious to a reasonable government actor that his actions violate federal law.” Id.
(quotation marks omitted). The relevant caselaw is that of the United States Supreme Court, the
Eleventh Circuit Court of Appeals, and the highest court of the state under which the claim arose.
Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011).
The second method looks at the officer’s conduct and asks “whether that conduct lies so
obviously at the very core of what the [Constitution] prohibits that the unlawfulness of the conduct
was readily apparent to the officer, notwithstanding the lack of fact-specific case law.” Fils, 647
F.3d at 1291 (quotation marks omitted). This second method, known as obvious clarity, is a narrow
exception to the general rule that only caselaw and specific factual scenarios can clearly establish
a constitutional violation. Id.; see also Coffin, 642 F.3d at 1015 (stating that obvious clarity cases
are rare).
Clearly established law “should not be defined at a high level of generality” and “must be
particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quotation
marks omitted). Although there need not be a case directly on point for a right to be clearly
established, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. at 551 (quotation marks omitted). While “general statements of the law are not
inherently incapable of giving fair and clear warning to officers,” the unlawfulness must be
apparent in the light of pre-existing law. Id. at 552 (quotation marks omitted); see also Vaughan
v. Cox, 343 F.3d 1323, 1332 (11th Cir. 2003) (stating that the “salient question . . . is whether the
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state of the law gave the defendants fair warning that their alleged conduct was unconstitutional”
(quotation marks omitted)). “[I]f case law, in factual terms, has not staked out a bright line,
qualified immunity almost always protects the defendant.” Oliver v. Fiorino, 586 F.3d 898, 907
(11th Cir. 2009).
The freedom from unreasonable searches and seizures under the Fourth Amendment
encompasses a right to be free from the use of excessive force during an arrest. Durruthy v. Pastor,
351 F.3d 1080, 1093 (11th Cir. 2003). 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.” Manners, 891 F.3d at
973 (quotation marks omitted). An application of de minimis force without more will not support
an excessive-force claim. Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000). Use of
de minimis force, even if unnecessarily, is not unlawful. Durruthy, 351 F.3d at 1094; see also
Graham v. Connor, 490 U.S. 386, 396 (1989) (stating that “[n]ot every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment”
(citation and quotation marks omitted)).
The constitutionality of a use of force during an arrest is analyzed under an objective
reasonableness standard and is not capable of precise definition or mechanical application.
Graham, 490 U.S. at 396-97. To determine whether the force used was proper, a court must ask
whether a reasonable officer would believe that the force was necessary in the situation at hand.
Lee, 284 F.3d at 1197. Reasonableness is dependent on “the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Graham, 490 U.S. at 396; see also Vinyard v. Wilson, 311 F.3d 1340,
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1347 (11th Cir. 2002) (stating that factors to consider include the need for an application of force,
the relationship between that need and the amount of force used, and the extent of the injury
inflicted). “The ‘reasonableness’ of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396; see also Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010) (stating that
courts must account for the fact that police officers are often forced to make split-second judgments
under tense, uncertain, and rapidly evolving circumstances). On summary judgment, a court
“cannot simply accept the officer’s subjective version of events, but rather must reconstruct the
event in the light most favorable to the non-moving party and determine whether the officer’s use
of force was excessive under those circumstances.” Fils, 647 F.3d at 1288.
Viewing the evidence in the light most favorable to Dr. Garber, the force used against him
was not de minimis. A review of the caselaw indicates that the pushing and shoving that occurred
as Dr. Garber was moved down the hallway, and even the leg sweep technique that Officer Esteves
conducted to take Dr. Garber to the floor, are considered de minimis force attendant to an arrest.
See, e.g., Croom v. Balkwill, 645 F.3d 1240, 1252-53 (11th Cir. 2011) (concluding that forcing a
woman to the ground and holding her there with a foot or knee for up to ten minutes was a
de minimis use of force); Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997)
(concluding that a minimal amount of force was used when officers “slammed” a suspect against
a wall, kicked his legs apart, required him to raise his arms above his head, and pulled his wallet
from his pants); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559-60 (111th Cir. 1993) (“But,
even though pushing [the suspect] against the wall might have been unnecessary, this pushing was
not plainly unlawful.”).
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However, there is also testimonial evidence from Dr. Garber and two eyewitnesses that
multiple officers kicked Dr. Garber even after he was made to lie on his stomach on the floor. This
use of force is distinguishable from the use of force attendant to maneuvering a suspect into a
position by which to secure an arrest. See Lee, 284 F.3d at 1200 (stating that a minimal use of
force “is an expected, necessary part of a law enforcement officer’s task of subduing and securing
individuals suspected of committing crimes”). Kicking a suspect lying face-down on the floor is
not de minimis force attendant to an arrest. Cf. id. at 1199-1200 (concluding that slamming a
suspect’s head onto a car trunk after she had been secured was more than de minimis force); Slicker,
215 F.3d at 233 (concluding that kicking a suspect and hitting his head on the pavement after he
had been subdued was not de minimis force).
The officers do not contend that any kicking that occurred was de minimis force.
See generally DE 80, 96. The officers instead contend that the body camera videos “definitively
refute[] any contention by [Dr. Garber] or the residents of the home that the officers repeatedly
kicked plaintiff once he was on the ground.” DE 96 at 4, 7. The Court has reviewed the body
camera videos. Based on the angles of the videos and the fact that view is obstructed at several
points, the Court cannot “definitively” conclude that officers did not kick Dr. Garber while he was
on the floor. See Shaw, 884 F.3d at 1097 n.1 (stating that a court on summary judgment must
accept the non-moving party’s version of what occurred “where the recording does not clearly
depict an event or action, and there is evidence going both ways on it”).
The officers also contend that the residents “are not disinterested witnesses” because
Dr. Garber had a good relationship with them and paid them for his daughter’s share of the rent.
DE 96 at 4. Although this may be true, the Court cannot at this stage weigh witness credibility.
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See Furcron, 843 F.3d at 1304 (explaining that a court may not weigh conflicting evidence or
make credibility determinations on summary judgment). Whether officers kicked Dr. Garber
while he lie on the floor on his stomach is a question of fact. At this stage, the assertions that the
kicking occurred are accepted as true.
Because the force used against Dr. Garber was not de minimis, the analysis turns to whether
the force was objectively reasonable and to the factors relevant to such an inquiry. Dr. Garber was
cited for resisting an officer without violence. Resisting an officer without violence is “akin to
resisting arrest, an offense of sufficient severity that . . . it weighs in favor of finding some use of
force to be reasonable.” Montanez v. City of Orlando, 678 F. App’x 905, 910 (11th Cir. 2017)
(citing Graham, 490 U.S. at 396). Dr. Garber’s citation was for a misdemeanor. See Fla. Stat.
§ 843.02. Generally, “more force is appropriate for a more serious offense and less force is
appropriate for a less serous one.” Lee, 284 F.3d at 1198; see also Fils, 647 F.3d at 1288 (stating
that “resisting arrest without force does not connote a level of dangerousness that would justify a
greater use of force”).
As to the threat that Dr. Garber posed to the officers’ safety and the proportionality of the
force used, the evidence taken in the light most favorable to Dr. Garber shows that he began to
move down the hallway when directed to do so, but stated “don’t push me” when Officer Jumelles
touched his back and stated “shut up” when Officer Zampini directed him to “go.” He did not
resist as officers then pushed him down the hallway, but cried “you assaulted me” and “I’ll be
pressing charges against you.” He became seated and was then made to lie on the floor on his
stomach after Officer Esteves completed a leg sweep and multiple officers landed on top of him,
crying “get off me,” “he assaulted me,” and “you broke my . . . glasses” and grabbing onto a
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bedframe at one point. Multiple officers were kicking him, both while he was standing and while
he was lying on his stomach. He did not resist being handcuffed, although officers had difficulty
placing him into handcuffs, possibly because of a rotator cuff injury.
The parties characterize Dr. Garber’s responses of “don’t push me” when Officer Jumelles
touched his back and “shut up” when Officer Zampini directed him to “go” vastly differently, with
the officers contending that Dr. Garber was behaving in an aggressive, hostile, and threatening
manner and Dr. Garber contending that he was simply rude and impolite. Having viewed the body
camera videos, the Court concludes that a reasonable officer would have felt threatened and would
have believed that some force was necessary after Dr. Garber stated “shut up” directly into Officer
Zampini’s face after being told to move down the hallway.
Even if it was reasonable to push Dr. Garber away from the active crime scene and to take
him to the floor, a reasonable officer would not have felt threatened after Dr. Garber had been
taken to the floor and made to lie on his stomach. Although not yet handcuffed, he was surrounded
by multiple police officers. Kicking Dr. Garber while he was on the floor was unnecessary to
neutralize any threat that he posed. Cf. Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008)
(concluding that an officer’s single punch to a suspect’s stomach constituted excessive force when
the suspect was not struggling or resisting and posed no danger).
As to whether Dr. Garber offered resistance, there is testimonial evidence to indicate that
he did not physically resist while officers moved him down the hallway. The body camera videos,
while showing that Dr. Garber was crying out while being moved down the hallway, are not
determinative on the issue of whether he offered physical resistance. Although he did not sit down
when Officer Jumelles instructed him to do so, it is disputed whether he had the ability to sit, given
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that other officers were holding onto him. Dr. Garber acknowledges that, while being forced onto
the floor, he offered some resistance in the form of grabbing onto the bedframe. DE 86 at 7-8;
DE 87 at 7. The body camera video shows that his hold on the bedframe was brief before officers
forced him to let go of it.
Evidence reflects that Dr. Garber’s physical injuries resulting from this incident include a
fractured left knee, back and spine injuries including disc herniations, hand and wrist injuries
including nerve damage, reinjury of his right rotator cuff, and bruising. He also experiences
accelerated hypertension, depression, anxiety, insomnia, nightmares, and post-traumatic stress
disorder.
In evaluating all of the facts and circumstances to assess the reasonableness of the officers’
actions, the Court is also mindful of the events that preceded Dr. Garber’s altercation with the
officers. Dr. Garber had just learned that his daughter had died. He had viewed her body in the
bathroom with drug paraphernalia nearby. The body camera videos show that he obviously was
distraught over his daughter’s death.
Considering all of these factors together, the force used against Dr. Garber was objectively
unreasonable and excessive. His crime was not serious, and the evidence viewed in his favor
reflects that he offered only minimal resistance to the officers forcing him away from the crime
scene and onto the floor. While he was verbally confrontational during an emotional situation, he
was not physically violent. A reasonable officer would not believe that kicking him while he lie
on his stomach on the floor was necessary in that situation.
Having determined that the force used against Dr. Garber was objectively unreasonable,
the analysis next tuns to whether the force violated clearly established law. Caselaw has clearly
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established that gratuitous force may not be used against a suspect who has been subdued and is
not resisting. Hadley, 526 F.3d at 1330, 1333-34. Qualified immunity does not “immunize
officers who use excessive and gratuitous force after a suspect has been subdued, is not resisting,
and poses no threat.” Saunders v. Duke, 766 F.3d 1262, 1269-70 (11th Cir. 2014).
Dr. Garber compares this case to the circumstances in Fils v. City of Avenura. In Fils, there
was evidence that an officer fired his taser on a partygoer who had his hands raised and, when the
partygoer fell to the ground, put his knees on the partygoer’s back and “applied a contact tase”
before handcuffing him. 647 F.3d at 1277, 1288. The Eleventh Circuit determined that this use
of force was excessive and that qualified immunity did not protect the officer. Id. at 1288-92. The
Eleventh Circuit noted that the partygoer had committed the minor offense of disorderly conduct,
was not violent or resisting, did not pose a threat, and did not disobey instructions. Id. at 1292.
Similarly, the Eleventh Circuit held in Priester v. City of Riviera Beach that an officer was not
entitled to qualified immunity when he permitted his dog to attack a suspect who was on the ground
and did not pose a threat. 208 F.3d 919, 927 (11th Cir. 2000). And in Hadley v. Gutierrez, the
Eleventh Circuit determined that an officer was not entitled to qualified immunity when he
punched in the stomach a suspect who was not resisting and posed no danger to the officer.
526 F.3d at 1330, 1333-34.
While these cases are not factually identical to the circumstances of this case, they give
officers fair warning that gratuitous force may not be used against a suspect who has been subdued
and is not resisting. See Fils, 647 F.3d at 1292 (“While these cases are not identical to [this] case,
they need not be materially similar; the precedent need only provide the Defendants with fair
warning.” (quotation marks omitted)). Here, there is evidence indicating that multiple officers
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repeatedly kicked Dr. Garber while he was lying face-down on the floor. If this occurred, the
caselaw is clearly established that such conduct violated Dr. Garber’s Fourth Amendment right to
be free from excessive force during arrest.
Based on this record and the disputed issues of fact, the Court cannot conclude that any of
the officers are entitled to qualified immunity. The officers’ Motion for Summary Judgment [DE
80] is denied.
V.
CONCLUSION
For the foregoing reasons, Defendant City’s Motion for Summary Judgment [DE 78] is
GRANTED. The Motion for Summary Judgment of Defendant Officers Jumelles, Dunlop,
Esteves, and Zampini [DE 80] is DENIED.
The Court will set a Status Conference in this matter by separate Order.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 29th day of July,
2019.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to: Counsel of Record
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