WELLS v. TALTON et al
Filing
32
ORDER granting 20 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/5/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SHARESE M. WELLS, as
Administrator for the Estate of
Robert K. Chambers,
Plaintiff,
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v.
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CULLEN TALTON, in his official
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capacity as Sheriff of Houston
County, and STEVEN GIDDEN, in his :
individual capacity,
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Defendants.
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No. 5:13‐CV‐24 (CAR)
ORDER ON SUMMARY JUDGMENT
This case arises from the fatal shooting of Robert K. Chambers by Deputy Steven
Glidden with the Houston County Sheriff’s Office. Plaintiff Sharese M. Wells, as the
Administrator for Chambers’ Estate, brings 42 U.S.C. § 1983 claims against Defendants
Cullen Talton, in his official capacity as the Sherriff of Houston County, and Deputy
Glidden, in his individual capacity, alleging that Glidden’s use of deadly force violated
Chambers’ Fourth and Fourteenth Amendment rights. Currently before the Court is
Defendants’ Motion for Summary Judgment [Doc. 20]. After careful consideration, the
Court finds that Deputy Glidden is protected by qualified immunity because his use of
deadly force was reasonable under the circumstances and did not violate clearly
established law. Thus, the derivative claims against Sherriff Talton and the state law
wrongful death claims also fail. Accordingly, Defendants’ Motion [Doc. 20] is
GRANTED.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”1 A genuine issue of material
fact only exists when “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”2 Thus, summary judgment must be granted if
there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving
party or, in other words, if reasonable minds could not differ as to the verdict.3 When
ruling on a motion for summary judgment, the Court must view the facts in the light
most favorable to the party opposing the motion.4
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 See id. at 249‐52.
4 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
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material fact” and that entitle it to a judgment as a matter of law.5 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.6 This evidence must consist of more than mere conclusory allegations or
legal conclusions.7
BACKGROUND
In an excessive force case like the one at bar, the Court must construe the facts in
the light most favorable to Plaintiff, but it must analyze the reasonableness of using
deadly force from the perspective of the officer.8 With that understanding in mind, the
Court derives the following facts from Deputy Glidden’s testimony as well as a video
from his taser camera, viewing this evidence in the light most favorable to Plaintiff.
On the morning of January 24, 2011, Steven Glidden, a deputy assigned to the
Houston County Sherriff’s Office Civil Division, was serving civil papers when he
heard a radio broadcast alerting him to a residential burglary in progress.9 Because he
was nearby, Deputy Glidden radioed in and was directed to assist in the investigation.10
The dispatcher informed Glidden that the homeowner had walked in and heard
Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
7 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
8 See Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1168 (11th Cir. 2005).
9 Decl. of Steve Glidden ¶ 6 (“Glidden Decl.”) [Doc. 20‐1].
10 Id. at ¶ 6.
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someone run out the back door.11 The homeowner did not see the intruder, and thus
Glidden was given no physical description of the suspect.12 But Glidden was warned
that the unidentified suspect was possibly armed with a loaded .45 caliber pistol
because a weapon matching that description was missing from the residence.13
Deputy Glidden pulled into the parking lot of a nearby middle school to check
the grounds for the suspect.14 Finding nothing out of the ordinary in the school parking
lot, Glidden decided to check the neighborhoods near the school in the vicinity of where
the burglary occurred.15 As Glidden approached a wooded area between the
neighborhood and the school, he stopped his patrol car and started walking along a
path through the wooded area back towards the school and the scene of the burglary.16
While on this path, Glidden encountered a young black male wearing a large, black
jacket with the hood over his head—later identified as Robert Chambers, the decedent
in this case.17 When Glidden first noticed Chambers he was approximately fifteen feet
away and seemed startled when he saw Glidden.18
Id. at ¶ 7.
Deposition of Steven Glidden 31:8‐12 (“Glidden Dep.”) [Doc. 30].
13 Glidden Decl. ¶ 11.
14 Id. at ¶ 8.
15 Id. at ¶ 9.
16 Id. at ¶ 10.
17 Id. at ¶¶ 12, 28.
18 Id. at ¶ 13.
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According to Deputy Glidden, he told Chambers numerous times to remove his
hands from his jacket pockets.19 After his second command, Chambers asked “Why?”
What’s going on?”, but Glidden refused to answer.20 Instead, Glidden commanded
Chambers again to take his hands out of his pockets and to take the hood of his jacket
off.21 Chambers complied with Glidden’s latter request by tilting his head back so the
hood could fall off, but he kept his hands in his pockets.22 Chambers then began taking
slow steps towards Glidden.23 At that point, Glidden testified that he did not feel
threatened by Chambers, and he did not draw his weapon.24 As Chambers walked
closer, Glidden asked Chambers where he lived, and Chambers indicated his mother
lived in a subdivision nearby.25
When Chambers came within six inches of Glidden, he stepped to Glidden’s
right as if to walk by him.26 As he did so, Glidden remained still with his eyes focused
on the area from which Chambers came to make sure no one was coming up from
Id. at ¶¶ 14‐15; Glidden Dep. 40:6‐17.
See id. at 40:11‐16.
21 Id. at 40:16‐18.
22 Id. at 40:19‐20, 41:6‐44:3.
23 Glidden Decl. ¶¶ 14‐15. Plaintiff disputes whether Chambers failed to comply with Glidden’s
commands to take his hands out of his pockets and cites to the taser video as evidence showing
Chambers complied with Glidden’s commands. However, Glidden had not drawn his taser at this point
in the encounter and therefore does not support Plaintiff’s assertion.
24 Glidden Dep. 45:10‐15, 47:12‐14.
25 Id. at 44:24‐45:4.
26 Glidden Decl. ¶ 16.
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behind.27 Using his peripheral vision, Glidden saw Chambers start to pull his left hand
from his jacket pocket and saw the butt of a pistol in Chambers’ left hand.28
Upon seeing the butt of the pistol, Glidden grabbed Chambers’ left hand, tried to
push it back into his pocket, and seized Chambers with his other hand.29 Glidden yelled
for Chambers to let go of the gun and get on the ground, as he physically struggled with
him30 During the struggle, Glidden testified he felt Chambers pulling on Glidden’s Glock
pistol in its holster, jerking it, and attempting to pull it out.31 Chambers, however, never
gained control over Glidden’s pistol.32 While still struggling to get Chambers to the
ground, Glidden deployed his taser in an attempt to get Chambers under control.33
Glidden heard the taser clicking and knew that he did not have a “good connection”;
instead, Deputy Glidden received a shock from the taser and dropped it.34
That taser was equipped with a camera that began recording after Glidden
pulled it during the struggle. The camera recorded the next twenty seconds of the
encounter.35 In that video, Glidden repeatedly yells at Chambers to get on the ground
and tugs Chambers by the front of his shirt. Chambers gets down on his hands and
Glidden Dep. 53:2‐4.
Glidden Decl. ¶ 16; Glidden Dep. 53:4‐7.
29 Glidden Decl. ¶ 17.
30 Id. at ¶ 18.
31 Id. at ¶ 20.
32 Glidden Dep. 62:18‐20.
33 Glidden Decl. ¶ 21.
34 Id. at ¶¶ 22‐23.
35 See DVD: Taser Video [Doc. 22].
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knees, and responds “I’m on the ground, sir!” No weapon can be seen on the video.
The camera begins to shake, and Chambers disappears from the camera’s view. For the
next twelve seconds, the camera moves quickly, showing flashing unrecognizable
images before falling to the ground. One can hear a single gunshot as the video comes
to an end.
After dropping the taser, Deputy Glidden lost control of Chambers.36 Glidden
testified that he held onto Chambers’ jacket, but Chambers wriggled free of his jacket,
pulled away from Glidden, and fled towards the neighborhood where other deputies
and residents were located.37 Glidden held Chambers’ jacket in his hand when it came
off, and he did not feel the weight of the gun he had seen seconds earlier in the jacket
pocket.38 Believing Chambers still had the gun, Glidden quickly threw the jacket aside
and retrieved the magazine to his Glock pistol from the ground nearby. 39 Without
giving Chambers a verbal command to stop, Glidden fired his Glock pistol once, hitting
Chambers in the back of the head and killing him instantly.40 Glidden testified that he
shot Chambers because he believed Chambers was armed and presented an imminent
Glidden Decl. ¶ 23.
Id. at ¶¶ 23‐ 24.
38 Id. at ¶ 24.
39 Id. at ¶ 24; Glidden Dep. 64:24‐65:1.
40 Glidden Decl. ¶ 25; Glidden Dep. 66:2‐4. Glidden testified that he could not recall whether he gave a
verbal command or not. No verbal command can be heard on the taser video. Construing the facts in the
light most favorable to Plaintiff, the Court assumes for purposes of summary judgment that no command
was given.
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threat to the residents and deputies in the neighborhood.41 Glidden admitted he did not
see a gun in Chambers’ possession at the time he shot him, and the undisputed facts
show Chambers was unarmed when he fled.42 Indeed, officers investigating the nearby
burglary arrived at the scene and found a .45 caliber handgun lying on the ground
roughly five feet from Chambers’ jacket and Glidden’s taser.43 The serial number on the
gun matched the one belonging to the gun taken from the burglarized house.44
At the time of the shooting, Deputy Glidden had been employed with the
Houston County Sherriff’s Office for over five years, since May of 2005.45 In June 2006,
he completed basic law enforcement training and became a certified peace officer
through the Georgia Peace Officer’s Standards & Training Council (“POST”).46
After receiving his POST certification, Glidden began working as a patrol officer
and, at that time, received a copy of and reviewed the Houston County Sherriff’s Office’s
written use of force policy.47 That policy permits the use of deadly force against a fleeing
felon “if there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm and that his/her escape might
Glidden Decl. ¶ 25.
Glidden Dep. 71:17‐21; 74:18‐19.
43 See Deposition of Gregory Pennycuff 18:8‐21, 34:11‐36:9 (“Pennycuff Dep.”) [Doc. 31]; see also Glidden
Dep. 75:24‐78:14.
44 Pennycuff Dep. at 37:17‐39:11.
45 Glidden Decl. ¶ 2.
46 Id.
47 Id. at ¶ 3.
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result in serious physical harm to another person.”48 Glidden was trained on and was
aware of the policy’s standards for the use of deadly force.49 Since receiving his initial
certification, he has received annual POST certified training, including annual training on
the use of deadly force and firearms qualifications and has maintained his POST
certification.50
DISCUSSION
Following the shooting, Chambers’ mother, Plaintiff Sharese Wells, in her
capacity as the Administrator of his Estate, filed this suit pursuant to 42 U.S.C. § 1983
against Deputy Glidden, in his individual capacity, and Sheriff Cullen Talton, in his
official capacity as Sheriff of Houston County, alleging that Deputy Glidden’s use of
deadly force and Sheriff Talton’s ratification of Glidden’s actions, as well as his policies
and customs regarding the use of such force, violated Chambers’ Fourth and Fourteenth
Amendment rights. Plaintiff also asserts state law wrongful death claims against both
Defendants pursuant to O.C.G.A. § 51‐4‐5. Defendants now move for summary
judgment on all of Plaintiff’s claims on the grounds that Glidden’s use of deadly force
was reasonable and did not violate clearly established law. In response, Plaintiff argues
Use of Force Policy, Section C [Doc. 20‐1].
Glidden Decl. ¶ 31.
50 Id. at ¶ 5.
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that Glidden’s use of force against an unarmed fleeing suspect was unconstitutional
under well settled law, and, therefore, summary judgment should be denied.
I. Evidentiary Dispute
Before analyzing the merits of the Motion, the Court will first address Plaintiff’s
argument that evidence in the record rebuts Glidden’s testimony that Chambers was
armed with the stolen gun during the encounter. In order to create an issue of material
fact, the nonmovant must point to specific evidence in the record.51 Plaintiff cites to the
taser video and contends that the video shows Chambers was completely unarmed. The
taser video, however, does not show as much as Plaintiff suggests. Neither Chambers’
left hand nor his jacket pockets are visible on the taser video. Moreover, Glidden saw the
gun before the video began recording. It was only after he saw the gun that the struggle
began, and he activated the taser. Thus, the taser video cannot rebut Glidden’s testimony
regarding events that occurred before the taser even began recording.
Plaintiff also points to the lack of Chambers’ DNA and fingerprints on the gun
found at the scene as evidence creating a genuine issue of material fact regarding
whether Chambers was armed. There is no evidence, however, that the gun was tested
for fingerprints. Thus, any inference regarding the presence or absence of fingerprints is
See L.R., Ga. M.D. 56 (“All material facts contained in the movant’s statement which are not specifically
controverted by specific citation to the particular parts of materials in the record shall be deemed to have
been admitted, unless otherwise inappropriate.”); see also McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004) (“For factual issues to be considered genuine, they must have a real basis in the record.”).
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merely speculative. The Court will not draw any inference in favor of either party based
on a lack of DNA or fingerprint evidence when there is no indication the gun was even
tested for such prints.52 “In determining whether summary judgment is appropriate, [the
court is] required to draw all reasonable inferences in favor of the non‐moving party, not
all possible inferences.”53 For these reasons, Plaintiff fails to create a genuine issue of
material fact as to whether Chambers was armed.
II. § 1983 Claims
Defendants argue they are entitled to summary judgment on Plaintiff’s § 1983
claims because Deputy Glidden is protected by qualified immunity, and Sheriff Talton is
protected by Eleventh Amendment immunity. Plaintiff only responded to Defendants’
arguments regarding qualified immunity, arguing Deputy Glidden’s use of deadly force
was constitutionally excessive and violated clearly established law. The Court, however,
disagrees and, after carefully considering the arguments and the record in this case, finds
that Glidden’s use of deadly force was reasonable and did not violate clearly established
law; thus, Deputy Glidden is entitled to qualified immunity. The Court further finds
Sherriff Talton is entitled to Eleventh Amendment immunity.
A. Fourth Amendment Claim against Deputy Glidden
Accord Beckett‐Crabtree v. Hair, No. 06‐CV‐0683CVEFHM, 2007 WL 3311393, at *2 n.5 (N.D. Okla. Nov. 6,
2007), affʹd sub nom., Beckett‐Crabtree ex rel. Estate of Crabtree v. Hair, 298 F. Appʹx 718 (10th Cir. 2008).
53 Horn v. United Parcel Servs., Inc., 433 F. Appʹx 788, 796 (11th Cir. 2011) (emphasis added).
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“[Q]ualified immunity offers complete protection for government officials sued
in their individual capacities as long as their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known.”54
As the Supreme Court recently reiterated, “[w]hen properly applied, [qualified
immunity] protects all but the plainly incompetent or those who knowingly violate the
law.”55 “The purpose of this immunity is to allow government officials to carry out their
discretionary duties without the fear of personal liability or harassing litigation.”56
Qualified immunity is immunity from suit and should be resolved as early as possible
in the case.57
When an officer invokes qualified immunity, the initial burden is on the officer to
show that “he was acting within the scope of his discretionary authority when the
allegedly wrongful acts occurred.”58 Once the officer satisfies that burden, the burden
then shifts to the plaintiff to show that (1) a violation of a constitutional right occurred,
and (2) that right was “clearly established” at the time of the violation. 59
Here, it is clear that Deputy Glidden was acting within the scope of his
discretionary authority as a deputy when he stopped and seized Chambers. Therefore,
Lee v. Ferraro, 284 F.3d 1188, 1193‐94 (11th Cir. 2002) (quotation marks omitted).
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).
56 Lee, 284 F.3d at 1194.
57 Pearson v. Callahan, 555 U.S. 223, 231‐32 (2009).
58 Lee, 284 F.3d at 1194.
59 Pearson, 555 U.S. at 232.
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the burden shifts to Plaintiff to prove that Glidden’s use of deadly force violated
Chambers’ clearly established Fourth Amendment rights. Plaintiff cannot meet that
burden on the facts of this case.
i. Constitutional Violation
The Fourth Amendment’s prohibition against unreasonable searches and
seizures encompasses the right to be free from excessive force.60 Accordingly, excessive
force claims arising out of a stop or seizure are governed by the Fourth Amendment’s
objective reasonableness standard. 61 The reasonableness inquiry is objective—the issue
is whether Deputy Glidden’s use of deadly force was “objectively reasonable in light of
the facts and circumstances confronting him, without regard to his underlying intent or
motivation.”62 When determining whether an officer’s use of force is reasonable, the
Eleventh Circuit instructs:
[W]e are not to view the matter as judges from the comfort and safety of
our chambers, fearful of nothing more threatening than the occasional
paper cut as we read a cold record accounting of what turned out to be the
facts. We must see the situation through the eyes of the officer on the
scene who is hampered by incomplete information and forced to make a
split‐second decision between action and inaction in circumstances where
inaction could prove fatal.63
Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S. 386, 394‐95 (1989)).
Graham, 490 U.S. at 395.
62 Crosby v. Monroe Cnty., 394 F.3d 1328, 1333 (11th Cir. 2004) (quotation marks omitted).
63 Id. at 1333‐34.
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To aid in the reasonableness analysis, the Court “measure[s] the quantum of
force employed against these factors—the severity of the crime at issue; whether the
suspect poses an immediate threat to the safety of the officers or others; and whether
the suspect actively resisted arrest or attempted to evade arrest by flight.”64 In the
deadly force context, the Court should also consider whether the officer:
(1) “[H]as probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others” or “that he has
committed a crime involving the infliction or threatened infliction of
serious physical harm;” (2) reasonably believes that the use of deadly
force was necessary to prevent escape; and (3) has given some warning
about the possible use of deadly force, if feasible.”65
“Also relevant is whether the officer ‘had [an] articulable basis to think [the suspect]
was armed.’”66 Though the Court should consider each of these factors, “[t]he Supreme
Court has emphasized that there is no precise test or ‘magical on/off switch’ to
determine when an officer is justified in using excessive or deadly force.”67 “Nor must
every situation satisfy certain preconditions before deadly force can be used.”68 “[I]n
the end we must still slosh our way through the factbound morass of reasonableness.”69
Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009).
Vaughan v. Cox, 343 F.3d 1323, 1329‐30 (11th Cir. 2003) (quoting Tennessee v. Garner, 471 U.S. 1, 11‐12
(1985)) (emphasis omitted).
66 Salvato v. Miley, ‐‐ F.3d ‐‐, No. 14‐12112, 2015 WL 3895455, at *5 (11th Cir. June 25, 2015) (quoting Garner,
471 U.S. at 20).
67 Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 382
(2007)).
68 Garczynski, 573 F.3d at 1166.
69 Scott, 550 U.S. at 383 (quotation marks omitted).
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Based on the facts and circumstances confronting Deputy Glidden, this Court
finds his use of the deadly force objectively reasonable. First, Glidden had probable
cause to believe that Chambers had committed a serious crime—burglary in which a
loaded gun went missing. Glidden testified that he encountered Chambers in the
wooded area near the burglarized house. Chambers refused to obey Glidden’s
commands to remove his hands from his pockets, and, as he passed by, Glidden
testified he saw the butt of a gun in Chambers’ left hand. Though Glidden did not
know whether Chambers was involved in the burglary when he first encountered him,
the development of these facts provided Glidden with probable cause to believe
Chambers had committed the burglary. 70
Second, Glidden had an articulable basis for believing Chambers was armed with
the loaded gun when he fled. Glidden testified he saw the butt of a gun in Chambers’
left hand as he began pulling it from his jacket pocket, and the undisputed facts show
that Glidden never gained control of that gun. At the time Chambers fled, Glidden had
a grasp on nothing but Chambers’ jacket, and he could not feel the weight of the gun in
the pocket. Thus, Glidden reasonably believed Chambers still had the gun in his
possession when he fled. The fact that it was later determined Chambers was not
While emphasizing that burglary is a serious crime, the Court in no way suggests that burglary alone
justifies the use of deadly force. See Garner, 471 U.S. at 21 (“While we agree that burglary is a serious
crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force”).
Rather, it is a relevant factor that affects the reasonableness analysis.
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armed does not make Deputy Glidden’s belief at the time unreasonable. It is well
settled that a reasonable mistake regarding whether a suspect is armed does not defeat
the protection of qualified immunity.71 Based on the facts known to him at the time,
Glidden reasonably believed Chambers had a gun on his person.
Third, an objectively reasonable officer in Glidden’s position would have
probable cause to believe Chambers—a man he believed to be armed with a loaded
gun—posed a threat of serious physical harm to other officers in the area. Plaintiff
argues there were no other persons in the vicinity, and therefore, no reasonable basis
existed to believe that Chambers posed a threat to others. The record, however, shows
that Chambers fled towards the neighborhood where the burglary occurred, and other
officers were in the area of the house when the shot was fired. Accordingly, Deputy
Glidden had probable cause to belief Chambers posed a threat to those officers.
Fourth, an objectively reasonable officer in Glidden’s position would believe that
deadly force was necessary to prevent Chambers’ escape and avert the threat of harm.
The record shows Chambers failed to obey Glidden’s commands and resisted arrest.
Glidden commanded Chambers to remove his hands from pockets. Chambers did not
See Penley v. Eslinger, 605 F.3d 843, 854 (11th Cir. 2010) (finding officer’s use of deadly force was
reasonable where suspect held a toy gun he had modified to look like a real gun); Quiles v. City of Tampa
Police Depʹt, 596 F. Appʹx 816, 820 (11th Cir. 2015) (finding officer who shot fleeing suspect under
reasonable, but mistaken, belief that the suspect had stolen fellow officer’s gun was entitled to qualified
immunity).
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comply. Glidden ordered Chambers to get on the ground. Chambers physically
resisted. Glidden deployed his taser but missed the target. Chambers got on his hands
and knees, but only for a matter of seconds. Chambers then wriggled free of his jacket
and fled. When his verbal commands and physical force proved unsuccessful to
subdue Chambers, only then did Glidden resort to deadly force to apprehend a person
he believed to be armed. Because none of his prior attempts to subdue Chambers were
successful, Glidden reasonably believed that deadly force was necessary to prevent
escape.
As to the final factor—warning of the intent to resort to deadly force—the Court
finds that Glidden’s failure to warn Chambers does not create a genuine issue of
material fact as to whether his use of deadly force was reasonable. “[A]n officerʹs failure
to issue a seemingly feasible warning—at least, to a person appearing to be armed—
does not, in and of itself, render automatically unreasonable the use of deadly force.”72
Here, a mere twelve seconds elapsed between Chambers’ disappearance from the taser
video’s view and the fatal gunshot. Thus, Glidden had a matter of seconds to stop a
man, who he had seen with a gun, fleeing towards other officers. With only a few
seconds to react, failing to give a warning to a potentially armed suspect does not
render Deputy Glidden’s use of deadly force constitutionally unreasonable.
72
Quiles, 596 F. Appʹx at 820.
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In that regard, the circumstances of this case are distinguishable from those in
Salvato v. Miley,73 where the Eleventh Circuit recently held that, viewing the facts in the
light most favorable to the plaintiff in that case, the use of deadly force to stop a fleeing
suspect was excessive.74 In Salvato, the initial crime was not serious—the man was
seized for “yelling and cussing at passing cars,”75 not burglary in which a loaded gun
went missing. Additionally, at the time the officer in Salvato shot the man in the
abdomen, the man was “apparently unarmed,”—he was shirtless, with nothing in his
hands, and the officer did not see a gun in his waistband. 76 Here, by contrast,
Chambers’ back was facing Glidden when fled, and Glidden could not see what he had
in his hands. Given that Glidden previously saw a gun in Chambers’ left hand, he had
reason to believe Chambers was armed with that gun when he fled. Under these
circumstances, the use of deadly force was reasonable.
ii. Clearly‐Established Law
Assuming arguendo Plaintiff could establish a Fourth Amendment violation, to
overcome qualified immunity, Plaintiff must also show that Deputy Glidden’s conduct
violated clearly established law. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer
‐‐ F.3d ‐‐, No. 14‐12112, 2015 WL 3895455 (11th Cir. June 25, 2015).
Id. at *5.
75 Id.
76 Id. at *1, 5.
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that his conduct was unlawful in the situation he confronted.”77 In other words, the
issue is whether the law gave the officer “fair warning” that his conduct was
unconstitutional.78 When determining whether the law is clearly established, factually
similar cases are “usually . . . needed to demonstrate that officials were fairly warned
that their application of force violated the victimʹs constitutional rights.”79 In
conducting the clearly‐established analysis, “the district court should compare the facts
of the case before the court that allege a constitutional deprivation with those cases that
the party opposing the motion contends show the clearly established nature of the
law.”80 To find such cases, the Court must look only “to law as decided by the Supreme
Court, the Eleventh Circuit, or the Supreme Court of [Georgia].”81 Plaintiff cites three
cases to show that clearly established law gave Glidden fair warning that his conduct
was unlawful. Each of these cases, however, is factually distinguishable from this case.
Plaintiff first cites to Tennessee v. Garner,82 the pivotal Supreme Court case
establishing the reasonableness of deadly force to apprehend a fleeing suspect. In that
case, a police officer responded to a residential burglary, saw the suspect run out the
Saucier v. Katz, 533 U.S. 194, 202 (2001).
Hope v. Pelzer, 536 U.S. 730, 741 (2002).
79 Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003).
80 Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir. 2015).
81 Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1345 (11th Cir. 2013).
82 471 U.S. 1 (1985).
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back door, and shot him before he could climb the fence to escape.83 Unlike the facts of
this case, however, at the time the officer shot the suspect in Garner, he could see the
suspect’s hands, saw “no signs of a weapon,” and was “reasonably sure” the suspect
was unarmed.84 The Supreme Court held an officer’s use of deadly force to apprehend a
unarmed, nondangerous fleeing suspect unreasonable.85 In the case at bar, by contrast,
Deputy Glidden not only saw “signs” of a weapon, but testified he actually saw the butt
of a gun in Chambers’ left hand. Moreover, although at the time he shot Chambers he
did not see the gun, he had a reasonable belief Chambers was armed because he knew a
gun went missing from the house, had seen a gun in Chambers’ left hand in the jacket
pocket, and could not feel the weight of the gun in the pocket when Chambers fled.
Accordingly, Garner did not put Glidden on notice that he conduct was unlawful.
Second, Plaintiff cites to Palmer v. Hall.86 In that case, officers responded to a call
that boys were shooting guns within city limits, a misdemeanor offense.87 When the
police arrived, the boys scattered, and one of the officers began chasing a twelve‐year‐
old boy who was holding a BB gun. 88 Despite the officer’s command to stop and drop
Id. at 3‐4.
Id. at 3.
85 Id. at 11, 21.
86 517 F.2d 705 (1975).
87 Id. at 705‐07.
88 Id. at 706.
83
84
20
the weapon, the boy kept running.89 At the bench trial, the officer testified that the boy
looked back in such a way that the barrel of the gun pointed towards him, and fearing
for his life, shot the boy in the leg.90 The Palmer court, however, rejected the officer’s
version of the events because the officer’s testimony was inconsistent with the direction
of the bullet, which suggested that the child was facing ahead when the bullet was
fired; thus, the court found the officer’s use of deadly force unconstitutional.91
The factual scenario facing Deputy Glidden differs from the one facing the officer
in Palmer in three key ways. First, the officer in Palmer believed the boy had committed
a misdemeanor offense; whereas when Deputy Glidden saw the gun in Chambers’
pocket, he had probable cause to believe Chambers committed felony burglary. Second,
the boy in Palmer did not physically resist the officer as Chambers did here. Third, and
most important, there is no indication that the boy in Palmer was running towards
anyone or that he posed a threat to others. The officer’s sole justification for using
deadly force in Palmer was that he feared for his own safety. Here, by contrast,
Chambers ran towards a neighborhood where other officers were located. Therefore,
Deputy Glidden had probable cause to believe he posed a threat of harm to others.
Id.
Id. at 706‐07.
91 Id. at 707.
89
90
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Lastly, Plaintiff cites Samples v. City of Atlanta.92 In Samples, the officer noticed the
suspect “screaming like a demented person in a phone booth.”93 When he approached
the suspect to question him, the officer testified the suspect threw a soda bottle at him,
pulled out a knife from his pocket, began opening it, and approached the officer.94 The
officer testified he feared for his life, so he shot the suspect six times.95 The court held
that an issue of material fact existed as to whether the use of deadly force was excessive
because circumstantial evidence contradicted the officer’s version of the events.96
Namely, the knife found near the suspect’s body was unopened, and one of the bullets
hit the suspect in the back, suggesting the he may have turned to run away. 97 In
addition, the court noted that the knife itself was small with nothing more than a three‐
inch blade.98 Here, by contrast, Deputy Glidden was not responding to a call that
someone was yelling in a phone booth, but instead was investigating a burglary in
which a loaded gun went missing. Moreover, Glidden believed Chambers was armed,
not with a small three‐inch knife, but a loaded .45 caliber pistol. Thus, Samples is not
sufficiently similar to put Glidden on notice that his conduct was unlawful.
846 F.2d 1328 (11th Cir. 1988).
Id. at 1331.
94 Id.
95 Id.
96 Id. at 1332.
97 Id.
98 Id.
92
93
22
In addition, none of these three cases involved a suspect fleeing towards an area
where the officer knew others were located. Here, Glidden knew that other officers were
in the area assisting in the burglary investigation and believed Chambers posed a threat
to those officers. Accordingly, these cases lack a materially similar factual basis to put
Glidden on notice that his conduct violated Chambers’ constitutional rights.
Plaintiff further argues that even in the absence of materially similar case law,
Glidden is not entitled to qualified immunity. To be sure, the Eleventh Circuit
recognizes a “narrow exception” when factually similar case law is unnecessary to
overcome qualified immunity in excessive force cases. 99 The exception applies when
“the officialʹs conduct lies so obviously at the very core of what the Fourth Amendment
prohibits that the unlawfulness of the conduct was readily apparent to the official,
notwithstanding the lack of caselaw.’”100 “To come within this narrow exception, a
plaintiff must show that the officialʹs conduct was so far beyond the hazy border
between excessive and acceptable force that the official had to know he was violating
the Constitution even without caselaw on point.”101
Plaintiff contends that “[s]hooting at an unknown, unarmed person who is
running away from police is precisely the kind of obviously unlawful conduct covered
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000).
Id.
101 Id. (quotation marks and brackets omitted).
99
100
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by this principle.”102 Plaintiff’s argument, however, over‐simplifies and misconstrues
the factual scenario rapidly unfolding before Deputy Glidden. As thoroughly explained
above, Glidden knew a loaded gun was missing from the burglarized house when he
encountered Chambers—a man who refused to comply with Glidden’s commands to
remove his hands from his pockets, had a gun in his left hand, physically resisted
Glidden, and fled in the direction of other officers. When Chambers fled, Glidden did
not have control over the gun he previously saw in Chambers’ pocket and believed
Chambers was still armed. The unlawfulness of deadly force in this scenario was not
readily apparent to Glidden in the total absence of factually similar case law. As such,
Plaintiff fails to show that this case falls within the narrow exception, and qualified
immunity bars Plaintiff’s Fourth Amendment claim against Glidden.
B. Fourteenth Amendment Claims against Glidden
Plaintiff further alleges that Glidden’s conduct violated Chambers’ due process
and equal protection rights guaranteed by the Fourteenth Amendment. Because
Plaintiff’s excessive force claim arises during the course of “an arrest or investigatory
stop of a free citizen,” it is analyzed under the Fourth Amendment’s reasonableness
standard, not the Fourteenth Amendment’s Due Process Clause.103 Additionally,
because Glidden’s use of deadly force was objectively reasonable under the Fourth
102
103
Pl.’s Resp., p. 17 [Doc. 26].
Graham v. Connor, 490 U.S. 386, 394‐95 (1989).
24
Amendment, the Equal Protection claim premised on that same conduct fails as a
matter of law.104
C. § 1983 Claims against Sheriff Talton
Plaintiff also asserts § 1983 claims against Sheriff Talton, alleging that he violated
Chambers’ constitutional rights by failing to discipline Glidden for his use of excessive
force, maintaining a policy or custom which ratified the use of unreasonable force against
fleeing suspects, enforcing an informal code of officer‐to‐officer loyalty that required
officers to remain silent about the actions of other officers, and failing to train officers on
the proper use of force. Since Plaintiff fails to show that Glidden’s use of force was
unconstitutional, Plaintiff’s claims against Sheriff Talton also fail.105 Even if, however, the
facts demonstrated a potential constitutional violation, Sheriff Talton would nevertheless
be entitled to summary judgment because: (1) the § 1983 claims are barred by Eleventh
Amendment immunity; and (2) there is no evidence in the record showing he adopted or
See Jennejahn v. Vill. of Avon, 575 F. Supp. 2d 473, 482 (W.D.N.Y. 2008) (“[The plaintiff’s] failure to
demonstrate the existence of any disputed material facts concerning his excessive force claim similarly
forecloses any equal protection claim based on excessive force”); Radford v. Johnson, No. 4:05 CV 80(CDL),
2006 WL 2927578, at *8 (M.D. Ga. Oct. 12, 2006) (“Without evidence of excessive force, a claim of racial
discrimination based on the degree of excessive force is without merit.”).
105 See Garczynski v. Bradshaw, 573 F.3d 1158, 1170‐71 (11th Cir. 2009) (finding that in the absence of a
constitutional violation, there was no need to explore sheriff office’s policies); Case v. Eslinger, 555 F.3d
1317, 1328 (11th Cir. 2009) (agreeing with district court that “absent a violation of [the plaintiff’s]
constitutional rights by [the officer], both [the sheriff] and the City . . . are entitled to summary
judgment.”); Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996) (finding it unnecessary to inquire into
a county’s failure to train officers when there was no underlying constitutional violation).
104
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implemented a policy of using unreasonable force or that he failed to train officers on the
proper use of force.
i. Eleventh Amendment Immunity
Sheriff Talton first argues he is entitled to Eleventh Amendment immunity
because he acted as an agent of the state, not the county, when he created and
implemented the use of force policy. “Eleventh Amendment immunity bars suits
brought in federal court . . . when an ‘arm of the State’ is sued.106 “Whether a defendant
is an ‘arm of the State’ must be assessed in light of the particular function in which the
defendant was engaged when taking the actions out of which liability is asserted to
arise.”107 The Eleventh Circuit in Manders v. Lee held that a Georgia sheriff acts as an
arm of the State when “establishing use‐of‐force policy at the jail and in training and
disciplining his deputies in that regard.”108 This Court later explained that the logic in
Manders is not limited to a sheriff’s use of force policy in the jail but rather extends to
the use of force used to stop and detain suspects as well. 109 Based on this authority, the
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003).
Id.
108 Id. at 1328.
109 Beaulah v. Muscogee Cnty. Sheriffʹs Deputies, 447 F. Supp. 2d 1342, 1356‐57 (M.D. Ga. 2006) (“[T]he
Eleventh Circuit found that ‘counties exercise no authority or control over the sheriffʹs force policy,
whether in making arrests on the streets or in quelling disruptive inmates at the jail.’” (quoting Manders,
338 F.3d at 1310)), order vacated in part sub nom., Walker v. Johnson, No. 4:04‐CV‐161 (CDL), 2008 WL 442328
(M.D. Ga. Feb. 14, 2008); see also Mladek v. Day, 293 F. Supp. 2d 1297, 1304 (M.D. Ga. 2003) (relying on
Manders to find that finding sheriff was entitled to Eleventh Amendment immunity arising from
performance of law enforcement function of arresting and detaining criminal suspects).
106
107
26
Court finds that Sheriff Talton acted as an arm of the State in establishing and
implementing the use of force policy at issue in this case and is therefore entitled to
Eleventh Amendment immunity.
ii. Municipal Liability
Even if Eleventh Amendment immunity did not apply, and Sherriff Talton was
acting instead as an agent of Houston County, he would nevertheless be entitled to
summary judgment. “[W]hen an officer is sued under § 1983 in his or her official
capacity, the suit is simply another way of pleading an action against an entity of which
an officer is an agent.”110 Therefore, suits against officers in their official capacity are in
reality suits against the government agency for which the officer acts.111 Counties and
local governments are considered “persons” subject to suit under § 1983. 112 A county,
however, cannot be held liable solely on a theory of respondeat superior for the wrongful
acts of its police officers.113 Instead, to hold a county liable under § 1983, a party must
identify an official policy, practice, or custom caused the constitutional violation.114
Accordingly, to hold Sheriff Talton liable as an agent of Houston County, Plaintiff must
show he implemented a policy or custom that caused a violation of Chambers’
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (quotation marks and footnote omitted).
Id.
112 McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing Monell v. New York City Dep’t of Social
Servs., 436 U.S. 658, 692 (1978)).
113 McDowell, 392 F.3d at 1289.
114 Grech v. Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003).
110
111
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constitutional rights.
In this case, Plaintiff alleges that Sheriff Talton (1) maintained a policy or custom
of ratifying the use of unreasonable force and a code of officer‐to‐officer loyalty, which
encouraged officers to remain silent regarding a fellow officer’s actions regardless of the
legality of those actions, and (2) failed to train subordinate officers on the proper use of
force to apprehend fleeing suspects. Sheriff Talton, however, is entitled to summary
judgment under both theories of liability.
First, Plaintiff fails to point to any evidence in the record showing that Sheriff
Talton maintained a policy, custom, or practice ratifying the use of unreasonable force
and/or a code of officer‐to‐officer loyalty. “As a general rule, an isolated incident,
however unfortunate, does not demonstrate evidence of [a county’s] persistent or
widespread policy and will not be considered so pervasive as to be a custom or
practice.”115 The record is devoid of any prior incidents of excessive force by Houston
County officers from which it could be inferred that Sheriff Talton ratified the use of
such force or enforced an informal code of officer‐to‐officer loyalty.
Second, Plaintiff fails to point to any evidence showing a failure to train officers
on the proper use of force to apprehend fleeing suspects. The Supreme Court instructs
that there are “limited circumstances” when a failure to train can form the basis for §
Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1264 (11th Cir. 2010) (internal quotation marks and
citations omitted).
115
28
1983 liability. 116 “Only where a municipalityʹs failure to train its employees in a relevant
respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a
shortcoming be properly thought of as . . . ‘policy or custom’ that is actionable under §
1983.”117 “To establish . . . such ‘deliberate indifference,’ a plaintiff must present some
evidence that the municipality knew of a need to train and/or supervise in a particular
area and the municipality made a deliberate choice not to take any action.”118
“[W]ithout notice of a need to train or supervise in a particular area, a municipality is
not liable as a matter of law for any failure to train and supervise.”119
Here, the use of force policy utilized at the Houston County Sherriff’s Office
allows the use of deadly force to apprehend a fleeing felon “if there is probable cause to
believe that he has committed a crime involving the infliction or threatened infliction of
serious physical harm and that his/her escape might result in serious physical harm to
another person.”120 Plaintiff does not argue that this policy was constitutionally
deficient, and the Court finds it to be consistent with the constitutional parameters
outlined in Tennessee v. Garner.121 The undisputed evidence shows that Glidden was
trained and certified on the proper use of force and knew when he could resort to
City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989).
Id. at 389.
118 Gold, 151 F.3d at 1350 (quotation marks omitted).
119 Id. at 1351.
120 Use of Force Policy, Section C [Doc. 20‐1].
121 471 U.S. 1 (1985).
116
117
29
deadly force under the terms of the policy. Moreover, there is no evidence in the record
showing prior incidents of excessive force by officers to put Sheriff Talton on notice of
the need for further training. Accordingly, Plaintiff fails to present any evidence of an
official policy or custom upon which to hold Sheriff Talton liable as an agent of
Houston County. Thus, Sherriff Talton is entitled to summary judgment on Plaintiff’s
§1983 claims against him in his official capacity.
II. State Law Wrongful Death Claim
A. Glidden and Official Immunity
In addition to the § 1983 claims, Plaintiff raises a state law wrongful death claim
against Glidden pursuant to O.C.G.A. § 51‐4‐5. Glidden now moves for summary
judgment on this claim, arguing that official immunity bars Plaintiff’s claim. Plaintiff
does not respond to this argument.
Under Georgia law, an officer is entitled to official immunity for injuries caused
by his actions unless he negligently performed “ministerial functions” or performed
“official functions” “with actual malice or with actual intent to cause injury.”122 Georgia
courts define “official functions” as “any act performed within the officerʹs or
employeeʹs scope of authority, including both ministerial and discretionary acts.”123
122
123
Gilbert v. Richardson, 264 Ga. 744, 753 (1994) (quoting Ga. Const. art. I, § II, ¶ IX(d)).
Gilbert, 264 Ga. at 753.
30
Here, as mentioned above, Glidden was performing a discretionary function
when he decided to stop and seize Chambers.124 Therefore, to overcome official
immunity, Plaintiff must provide sufficient evidence to suggest that Glidden acted with
“actual malice or with actual intent to cause injury.”
“The bar for proving malice or an intent to cause injury is high.”125
[A]ctual malice requires a deliberate intention to do wrong and denotes
express malice or malice in fact. Actual malice does not include implied
malice, or the reckless disregard for the rights and safety of others. A
deliberate intention to do wrong such as to constitute the actual malice
necessary to overcome official immunity must be the intent to cause the
harm suffered by the plaintiff[]. Likewise, the phrase “actual intent to
cause injury” has been defined in a tort context to mean an actual intent to
cause harm to the plaintiff, not merely an intent to do the act purportedly
resulting in the claimed injury. This definition of intent contains aspects of
malice, perhaps a wicked or evil motive.126
Construing the facts in the light most favorable to Plaintiff, there is no evidence
showing Glidden acted with malice or an intent to cause injury. Indeed, the
uncontroverted evidence shows Glidden believed the use of deadly force was necessary
to prevent death or serious bodily harm to other deputies and residents in the
neighborhood in the direction of where Chambers was fleeing. Accordingly, Glidden is
entitled to summary judgment on Plaintiff’s state wrongful death claim.
B. Sheriff Talton and Sovereign Immunity
See also Kidd v. Coates, 271 Ga. 33, 33 (1999); Tittle v. Corso, 256 Ga. App. 859, 861‐62 (2002).
Schwartz v. Gwinnett Cnty., Ga., 924 F. Supp. 2d 1362, 1378 (N.D. Ga. 2013).
126 Marshall v. Browning, 310 Ga. App. 64, 67‐68 (2011).
124
125
31
Similarly, Sheriff Talton is entitled to judgment as a matter of law on Plaintiff’s
wrongful death claim. Under state law, Georgia counties enjoy the protection of
sovereign immunity and can only be sued if they have explicitly waived that
immunity.127 Furthermore, “[a] lawsuit against a sheriff in his official capacity is
considered a suit against the county, and the sheriff is entitled to assert any defense or
immunity that the county could assert, including sovereign immunity.”128 “Sovereign
immunity is not an affirmative defense that must be established by the party seeking its
protection. Instead, immunity from suit is a privilege and the waiver must be
established by the party seeking to benefit from the waiver.”129 Plaintiff offers no
evidence showing a waiver of sovereign immunity in this case, nor is the Court aware
of one. Accordingly, Sherriff Talton is entitled to summary judgment on Plaintiff’s
wrongful death claim against him in his official capacity.
CONCLUSION
Based on the foregoing, Defendants’ Motion for Summary Judgment [Doc. 20] is
GRANTED.
Strength v. Lovett, 311 Ga. App. 35, 38 (2011).
Id. (citing Gilbert, 264 Ga. at 746(2) n.4).
129 Athens‐Clarke Cnty. v. Torres, 246 Ga. App. 215, 216 (2000).
127
128
32
SO ORDERED, this 5th day of August, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
33
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