Favors v. City of Atlanta

Filing 146

ORDER and OPINION: The City's 105 motion for summary judgment is GRANTED; Favors' 110 motion for partial summary judgment is GRANTED; and the City's 120 notice of objection and request for attorneys' fees is DENIED. The Clerk is DIRECTED to enter judgment in favor of the City on Favors's claims and close the case. Signed by Judge Steven D. Grimberg on 7/23/2020. (rjs)

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEMETRIC FAVORS,
Plaintiff,
Civil Action No.
1:17-cv-03996-SDG

v.
CITY OF ATLANTA,
a municipal corporation of the State of
Georgia,
Defendant.
OPINION AND ORDER

This matter is before the Court on Defendant City of Atlanta’s (the “City”)
motion for summary judgment [ECF 105]; Plaintiff Demetric Favors’s motion for
partial summary judgment [ECF 110]; and the City’s notice of objection and
request for attorneys’ fees [ECF 120]. Based on a careful review of the record, and
with the benefit of oral argument, the City’s motion for summary judgment is
GRANTED; Favors’s motion for partial summary judgment is GRANTED; and
the City’s notice of objection and request for attorneys’ fees is DENIED.
I.

BACKGROUND
Unless otherwise noted, the following facts are not disputed by the parties

or are supported by undisputed evidence in the record. On October 10, 2015,
Favors visited Magic City—an adult entertainment club in Atlanta, Georgia—with

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a group of other individuals.1 After entering Magic City, Favors remained at the
bar near the entrance with other individuals in the group.2 Soon after, a different
male patron—who was later identified as Desmond Brown—grabbed a stack of
money from Magic City’s stage while the dancers performed.3 About the same
time, Favors and the other individuals with whom he arrived exited Magic City.4
As Favors walked through Magic City’s parking lot, Brown returned to the stage,
grabbed another stack of bills from a Styrofoam plate, and exited the club.5
Prior to these events, then-Atlanta Police Department (“APD”) Officer
Emmanuel Thompson had driven to and parked his squad car in a parking lot
adjacent to Magic City to show a police presence and generally patrol for crime
prevention.6 While parked, Magic City’s head of security—LiTiesa Alford—
alerted Thompson that a male patron wearing a red bandana had taken another
patron’s money and ran out of the club.7 Thompson exited his car and began

1

ECF 118, ¶¶ 1–2.

2

Id. ¶ 4.

3

Id. ¶¶ 5–6.

4

Id. ¶ 7.

5

Id. ¶¶ 8–9.

6

Id. ¶¶ 10, 12.

7

Id. ¶ 13.

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assisting Alford and Magic City’s on-duty security officer in searching for this
male individual (i.e., Brown).8
About this time, Magic City’s security officer saw a male individual—whom
he believed matched the description of the person who had taken the money—
enter a white Chevrolet Traverse in the Magic City parking lot.9 Favors sat in the
front passenger seat—and Brown in the backseat—of that Traverse.10 The driver
of the Traverse was later identified as Dexter Binns.11 As the Traverse attempted
to leave the parking lot, the security officer ran alongside it in an attempt to stop
it.12 The Traverse did not stop, and as it exited the parking lot, Thompson
discharged his firearm five times into the vehicle.13 Two rounds entered the
Traverse’s front passenger door, striking Favors in the right thigh and ankle.14 The
remaining three rounds struck the Traverse’s rear bumper and lift gate door.15 The

8

Id. ¶¶ 15–16.

9

ECF 115, ¶ 4.

10

ECF 118, ¶ 17.

11

Id. ¶ 19.

12

Id. ¶ 20.

13

Id. ¶ 22.

14

ECF 115, ¶ 7.

15

Id.

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Traverse exited the parking lot at a high rate of speed and crashed into another
vehicle.16 After the crash, Binns and Brown fled on foot while Favors remained at
the crash site.17 Thompson subsequently arrested Favors.18 Favors was then
transported to the hospital for treatment.19
On March 23, 2016, the APD Office of Professional Standards (“OPS”)
concluded its investigation into the shooting at Magic City.20 OPS found video
surveillance of the incident contradicted Thompson’s rationale for firing at the
Traverse.21 OPS also found that “there [was] no evidence to support any
articulable threat of violence towards [Thompson], [or] anyone present.”22
Specifically, OPS found no articulable threat that “the driver’s escape would create
a continuing danger of serious physical harm to any person.”23 Given these

16

Id. ¶ 24.

17

Id. ¶¶ 25–26.

18

ECF 115, ¶ 12.

19

Id. ¶ 28.

20

Id. ¶ 60.

21

Id. ¶ 62.

22

Id. ¶ 63.

23

Id. ¶ 64.

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findings, OPS concluded that Thompson lacked justification for shooting at the
Traverse and recommended that he be fired.24
On March 25, 2016, Thompson resigned from the APD.25 As a result of
Thompson’s resignation, OPS closed its investigation.26 Later, a grand jury
indicted Thompson on counts of aggravated assault, violation of oath by a police
officer, and making false statements.27 Thompson was eventually charged with
simple assault.28 On March 6, 2019, Thompson pleaded guilty to the simple assault
charge and received a sentence as a first offender that included 12 months of
probation and the revocation of his Peace Officers Standards and Training Counsel
(“P.O.S.T.”) certification.29
Favors initiated this case on October 10, 2017, asserting two causes of action
solely against the City.30 In Count I, Favors asserts a claim under 28 U.S.C. § 1983.31

24

Id. ¶ 65.

25

Id. ¶ 67.

26

Id. ¶ 69.

27

ECF 115, ¶ 18.

28

Id. ¶ 19.

29

Id. ¶ 20.

30

ECF 1.

31

Id.

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In Count II, Favors seeks an award of attorneys’ fees under 28 U.S.C. § 1988.32 On
September 11, 2019, the City filed its motion for summary judgment as to both
claims asserted by Favors.33 On the same day, Favors filed his motion for partial
summary judgment only on the issue of whether his constitutional rights were
violated.34 On October 2, 2019, both parties filed responses in opposition to the
cross-motions for summary judgment.35 The City also filed its notice of objection
and request for attorneys’ fees that day.36 On October 16, 2019, both parties filed
their respective replies to the cross-motions for summary judgment,37 and Favors
filed a response in opposition to the City’s objection and request for attorneys’
fees.38 With leave of Court, the City filed its surreply in opposition to Favors’
motion for partial summary judgment on November 14, 2019.39 The Court heard
oral argument on the cross-motions on March 10, 2020.40

32

Id.

33

ECF 105.

34

ECF 110.

35

ECF 114; ECF 117.

36

ECF 120.

37

ECF 124; ECF 125.

38

ECF 126.

39

ECF 132.

40

ECF 136.

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II.

LEGAL STANDARD
Summary judgment is appropriate when “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 fact is “material” only if it can affect the
outcome of the lawsuit under the governing legal principles. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are irrelevant or
unnecessary” are not material. Id. A factual dispute is “genuine . . . if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
A party seeking summary judgment has the burden of informing the district
court of the basis for its motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If a movant meets its burden, the party opposing summary
judgment must present evidence showing either (1) a genuine issue of material
fact or (2) that the movant is not entitled to judgment as a matter of law. Id. at 324.
The non-movant “may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 248. If the evidence relied on by the non-movant is
“merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 249.

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In determining whether a genuine issue of material fact exists, the evidence
is viewed in the light most favorable to the party opposing summary judgment,
“and all justifiable inferences are to be drawn” in favor of that party. Id. at 255. See
also Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions” and cannot be made by the district
court. Anderson, 477 U.S. at 255. See also Graham v. State Farm Mut. Ins. Co., 193 F.3d
1274, 1282 (11th Cir. 1999). Summary judgment for the moving party is proper
“[w]here the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). See also Anderson, 477 U.S. at 250 (“The inquiry performed is the
threshold inquiry of determining whether there is the need for a trial—whether,
in other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of either
party.”).
III.

DISCUSSION
a.

The City’s Notice of Objection and Request for Attorneys’ Fees

The City requests that the Court exclude eleven exhibits attached to, and
relied on by, Favors’s motion for partial summary judgment—and award the City

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its attorneys’ fees as a sanction—because Favors failed to timely produce these
exhibits during the fact discovery period. The City specifically objects to exhibits
23, 25, 26, 29, 31, 34, 36, 38, 40, 42, and 44—all of which are APD police reports.
Favors, conversely, contends the Court should not exclude these exhibits, or award
the City attorneys’ fees, because he disclosed these documents in a reasonable
manner under the circumstances.
Federal Rule of Civil Procedure 37(c)(1) states:
If a party fails to provide information . . . as required by
Rule 26(a) or (e), the party is not allowed to use that
information . . . to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard:
(A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure . . . .
It is explicit in Rule 37 that “[e]xclusion . . . is not mandatory.” In re Delta/AirTran
Baggage Fee Antitrust Litig., 846 F. Supp. 2d 1335, 1358 (N.D. Ga. 2012) (citing
Bearint v. Dorell Juvenile Grp., Inc. (Ex rel. Bearint), 389 F.3d 1339, 1348 (11th Cir.
2004)). Instead, the Court possesses “broad discretion in determining whether a
violation is justified or harmless.” Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359
(S.D. Ga. 2012) (citing Catalina Rental Apts., Inc. v. Pacific Ins. Co., No. 06–20532–
CIV, 2007 WL 1050634, at *2 (S.D. Fla. Apr. 03, 2007)).

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Under the first prong, “an individual’s discovery conduct should be found
‘substantially justified’ under Rule 37 if it is a response to a genuine dispute, or if
reasonable people could differ as to the appropriateness of the contested action.”
Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993). For the second
prong, “[a] discovery mistake is harmless if it is honest, and is coupled with the
other party having sufficient knowledge that the material has not been produced.”
Go Med. Indus. Pty, Ltd. v. Inmed Corp., 300 F. Supp. 2d 1297, 1308 (N.D. Ga. 2003).
Courts generally consider the following factors in this analysis:
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure the
surprise; (3) the extent to which allowing the evidence
would disrupt the trial; (4) the importance of the
evidence; and (5) the nondisclosing party’s explanation
for its failure to disclose the evidence.
Abdulla, 898 F. Supp. 2d at 1359 (citing Two Men and a Truck Int’l, Inc. v. Res. &
Commercial Trans. Co., No. 4:08–cv–067, 2008 WL 5235115, at *2 (N.D. Fla. Oct. 20,
2008)).
Pursuant to the Court’s order, the fact discovery period in this case closed
on March 7, 2019.41 It is undisputed that Favors provided the at-issue exhibits to
the City on May 20, 2019—over two months after the fact discovery period had

41

ECF 69.

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closed.42 The City argues this delay caused it prejudice because the documents
were produced only one day before the scheduled deposition of Favors’s expert—
Scott DeFoe—and Favors obtained the documents directly from the APD ex parte
without the inclusion of the City’s legal counsel.
Based on the record, Favors violated Rule 37(c) by producing the at-issue
police reports to the City well after the close of the fact discovery period and one
day prior to DeFoe’s deposition. Courts routinely find this type of conduct
prejudicial. E.g., Pitts v. HP Pelzer Auto. Sys., Inc., 331 F.R.D. 688, 694 (S.D. Ga. 2019)
(“The improper disclosure of requested documents after the close of discovery
generally results in prejudice to the opposing party.”); Paul v. Aramark Healthcare
Support Servs., LLC, No. 1:15-cv-189-MHC, 2016 WL 7888045, at *4 (N.D. Ga. June
2, 2016) (“Prejudice generally occurs when late disclosure deprives the opposing
party of a meaningful opportunity to perform discovery and depositions related
to the documents or witnesses in question.”); Abdulla, 898 F. Supp. 2d at 1359 (“It is
harmful to deprive opposing counsel of an opportunity to prepare for the
deposition of an expert.”).

42

ECF 120-1.

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However, the Court holds that the City’s sought-after remedies (i.e.,
exclusion and sanctions in the form of attorneys’ fees) are not warranted in this
case. Based on the record, Favors had substantial justification for his delayed
disclosure. Favors contends, and the City does not dispute, that he only received
the police reports from APD’s Office of Central Records mere days before DeFoe’s
deposition.43 Once DeFoe reviewed the reports and determined they were relevant
to—but did not change—his opinion or report, Favors produced the documents to
the City.44 This disclosure occurred within the expert discovery period, which did
not close until June 28, 2019.45 The Court concludes that Favors took reasonable
steps under the circumstances to disclose to the City documents that are highly
relevant and important to Favors’s municipal liability claim.
Moreover, the record indicates that Favors’s actions, even if unjustified,
were harmless. Any prejudice suffered by the City has been substantially cured. It
is true that the City did not receive the police reports until one day before DeFoe’s
deposition. However, the City does not argue that it was unable to adequately

43

ECF 126, at 7 (“With respect to the timing of the production of the reports,
[Favors] explained to the City that we had only recently received the reports.”).

44

Id.

45

ECF 83.

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prepare for DeFoe’s deposition. And the City had the opportunity to thoroughly
examine DeFoe about the police reports during his deposition. Further, the City
received the police reports four months before the deadline to file summary
judgment briefs. Given this posture, the Court finds that the City has not been
substantially prejudiced by the untimely disclosure.46
Therefore, the City’s notice of objection and motion for attorneys’ fees is
DENIED.
b.

Favors’s Municipal Liability Claim Against the City

Favors’s sole claim against the City is for municipal liability pursuant to
42 U.S.C. § 1983. The City requests summary judgment in its favor on this claim.
Favors, conversely, requests summary judgment only on the issue of whether the
City violated his constitutional rights.
Section 1983 provides:

46

The City also contends it suffered prejudice because Favors obtained the police
reports directly from the APD through the Georgia Open Records Act without
the inclusion of the City’s legal counsel. Favors disputes this contention,
stating that he did not rely on this Georgia statute to obtain the police reports,
which were instead received by his legal counsel as part of their larger-scale,
ongoing investigation into the APD’s use-of-force tactics. Regardless of the
source of the documents, the Court finds the City has not articulated sufficient
prejudice from Favors having obtained these documents to warrant exclusion
or sanctions.

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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
Section 1983 itself creates no substantive rights. Baker v. McCollan, 443 U.S. 137, 140,
144 n.3 (1979). Rather, it provides a “method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Id.
Municipalities—such as the City—are considered “persons” for the
purposes of § 1983. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978). “To impose § 1983 liability on a municipality, a plaintiff must show:
(1) that his constitutional rights were violated; (2) that the municipality had a
custom or policy that constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the violation.” McDowell v. Brown,
392 F.3d 1283, 1289 (11th Cir. 2004).
i.

Favors Has Demonstrated a Violation of His Constitutional
Rights.

Favors moves for partial summary judgment on the sole issue of whether
his constitutional rights were violated when he was shot by Thompson on October
10, 2015. The Fourth Amendment provides:

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The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.
U.S. CONST. AMEND. IV.
A person is “seized” within the meaning of the Fourth Amendment when a
police officer, “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir.
2011) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). The Fourth Amendment’s
protection against unreasonable searches and seizures specifically embodies the
right of an individual to be free from the use of excessive force in the course of an
arrest. Graham v. Connor, 490 U.S. 386, 394–95 (1989); Mercado v. City of Orlando, 407
F.3d 1152, 1156-57 (11th Cir. 2005).
In Tennessee v. Garner, the Supreme Court set forth the standard for defining
the reasonable use of deadly force to seize a person:
Where the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally
unreasonable to prevent escape by using deadly force.
Thus, if the suspect threatens the officer with a weapon
or there is probable cause to believe that he has
committed a crime involving the infliction or threatened
infliction of serious physical harm, deadly force may be

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used if necessary to prevent escape, and if, where
feasible, some warning has been given.
471 U.S. 1, 11–12 (1985). Critically, the Supreme Court clarified that:
The use of deadly force to prevent the escape of all felony
suspects, whatever the circumstances, is constitutionally
unreasonable. Where the suspect poses no immediate
threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify
the use of deadly force to do so. . . . A police officer may
not seize an unarmed, nondangerous suspect by
shooting him dead.
Id. at 11. At bottom, “to determine whether the amount of force used by a police
officer was proper, a court must ask whether a reasonable officer would believe
that this level of force is necessary in the situation at hand.” Lee v. Ferraro, 284 F.3d
1188, 1197 (11th Cir. 2002). “Using deadly force in a situation that clearly would
not justify its use is unreasonable under the Fourth Amendment.” Mercado, 407
F.3d at 1160.
The parties here do not disagree: Thompson’s use of deadly force by
shooting at the Traverse in the Magic City parking lot was unreasonable.
Thompson lacked probable cause to believe that Favors—or anyone else in the
vehicle—posed a threat of physical harm to anyone. Based on the record, it is clear
that no reasonable officer in Thompson’s position would have believed the resort
to deadly force was necessary under these circumstances. Thompson’s conduct

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clearly violated Favors’s Fourth Amendment right to be free from unreasonable
seizure. Indeed, during oral argument, the City conceded that Thompson violated
Favors’s Fourth Amendment rights by shooting him without justification.
Therefore, Favors’s partial motion for summary judgment is GRANTED.
ii.

Whether the City Had a Custom or Policy that Constituted
Deliberate Indifference to Favors’s Constitutional Rights

Although Favors has shown a violation of his constitutional rights, that does
not automatically establish liability as to the City. A local government cannot be
subjected to respondeat superior liability; it “may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. See also
Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (“[A]
municipality may not be held liable under § 1983 solely because it employs a
tortfeasor.”). In Monell and its progeny, the “Supreme Court has placed strict
limitations on municipal liability under section 1983.” Gold v. City of Miami, 151
F.3d 1346, 1350 (11th Cir. 1998). A municipality “may be held liable under § 1983
only for acts for which the municipality itself is actually responsible, that is, acts
which the municipality has officially sanctioned or ordered.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988).
To succeed under Monell, a plaintiff must specifically “identify a municipal
policy or custom that caused the plaintiff’s injury.” Brown, 520 U.S. at 403.

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See also Gold, 151 F.3d at 1350 (“[A] municipality may be held liable for the actions
of a police officer only when municipal official policy causes a constitutional
violation. [Plaintiff] must identify a municipal policy or custom that caused his
injury.”) (quotation marks omitted) (citations omitted). A plaintiff may establish a
municipality policy by identifying either: “(1) an officially promulgated county
policy or (2) an unofficial custom or practice of the county shown through the
repeated acts of a final policymaker for the county.” Grech v. Clayton Cty., Ga., 335
F.3d 1326, 1329 (11th Cir. 2003) (citing Monell, 436 U.S. at 690–91; Brown v.
Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999)). To establish a county policy, the
plaintiff must “show a persistent and wide-spread practice.” Depew v. City of St.
Marys, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986). Random acts and isolated incidents
are insufficient. Id. The plaintiff must also establish that the municipality’s
“deliberate conduct” made it the “moving force” behind the alleged constitutional
injury. Brown, 520 U.S. at 404.
1.

Municipal Liability Premised on a Failure to Train

Favors does not point to an officially promulgated policy by the City to
support his claim. Instead, he asserts the City is liable for its failure to adequately
train Thompson—and other APD officers—on the use of deadly force with regard
to the necessary justification for shooting into moving vehicles.

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“In limited circumstances, a local government’s decision not to train certain
employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983.” Connick v. Thompson,
563 U.S. 51, 61 (2011). However, a municipality’s liability “for a deprivation of
rights is at its most tenuous where a claim turns on a failure to train.” Id. See also
City of Okla. City v. Tuttle, 471 U.S. 808, 822 (1985) (stating policy of “inadequate
training . . . that respondent seeks to rely upon is far more nebulous, and a good
deal further removed from the constitutional violation, than was the policy in
Monell”).
A city is not automatically liable under § 1983 even if it inadequately trained
its employees and those employees violated a plaintiff’s constitutional rights.
Gold, 151 F.3d at 1350. A city is only liable if the failure to train constitutes a
“city policy.” Id. Since a city will rarely maintain an express written or oral policy
permitting a constitutional violation of inadequately training its employees,
“a plaintiff may prove a city policy by showing that the municipality’s failure to
train evidenced a ‘deliberate indifference’ to the rights of its inhabitants.” Id.
See also Connick, 563 U.S. at 61 (“[A] municipality’s failure to train its employees in
a relevant respect must amount to deliberate indifference to the rights of persons
with whom the untrained employees come into contact.”); City of Canton, Ohio v.

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Harris, 489 U.S. 378, 388 (1989) (“Only where a municipality’s 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 a city ‘policy
or custom’ that is actionable under § 1983.”).
To demonstrate “deliberate indifference,” a plaintiff must present 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.” Gold,
151 F.3d at 1350–51 (collecting cases). Without notice of a need to train in a
particular area, a municipality is not liable as a matter of law for any such failure.
Id. See also Floyd v. DeKalb Cty., Georgia, No. 1:06-cv-2256-TCB, 2008 WL 11408593,
at *5 (N.D. Ga. Sept. 12, 2008) (“[T]he Eleventh Circuit has repeatedly held that
absent notice of a need to train in a particular area, as a matter of law a
municipality cannot be civilly liable for any failure to train or supervise.”). As the
Eleventh Circuit has succinctly described the problem: “Establishing notice of a
need to train or supervise is difficult.” Am. Fed’n of Labor & Cong. of Indus. Orgs. v.
City of Miami, FL, 637 F.3d 1178, 1189 (11th Cir. 2011) (hereafter, “AFL-CIO”).
See also Bradley v. Benton, No. 1:18-cv-01518-CAP, 2018 WL 8949775, at *7 (N.D. Ga.
Oct. 30, 2018) (“Municipal liability based on a failure to train is particularly
difficult to establish.”).

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The Supreme Court has, however, made clear that evidence of a single
violation of federal rights, accompanied by a showing that a municipality has
failed to train its employees to handle recurring situations that present an obvious
potential for such a violation, could trigger municipal liability. Canton, 489 U.S. at
390. To illustrate this point, the Supreme Court provided the following
hypothetical:
For example, city policymakers know to a moral
certainty that their police officers will be required to
arrest fleeing felons. The city has armed its officers with
firearms, in part to allow them to accomplish this task.
Thus, the need to train officers in the constitutional
limitations on the use of deadly force can be said to be so
obvious, that failure to do so could properly be
characterized as deliberate indifference to constitutional
rights. It could also be that the police, in exercising their
discretion, so often violate constitutional rights that the
need for further training must have been plainly obvious
to the city policymakers, who, nevertheless, are
deliberately indifferent to the need.
Id. at 390 n.10. See also Jernigan v. City of Montgomery, Ala., 806 F. App’x 915, 919
(11th Cir. 2020) (“[A] plaintiff must prove that the violation of his or her federal
rights was a highly predictable consequence of failing to train its officers.”); AFLCIO, 637 F.3d at 1189 (“In some cases, the need for training is so obvious that
deliberate indifference can be established even without an earlier violation or
pattern of abuse.”).

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 22 of 40

Favors argues the City had notice of the need to train its officers on the use
of deadly force in relation to the proper justification for shooting into moving
vehicles to stop fleeing felons. He points to evidence showing APD officers
frequently face this precise dilemma. For example, out of the 542 use-of-force
incidents reported by the APD in 2013, 15 involved the use of a firearm.47 Two of
those 15 reported incidents involved APD officers shooting into a vehicle.48 Favors
contends an additional incident of an APD officer firing into a moving vehicle
occurred in October 2013, but was not reported.49 In 2014, out of the 608 total useof-force incidents reported by APD, 16 involve the use of firearms.50 Two of those
had APD officers shooting into vehicles.51 In 2015, out of the 618 total incidents, 15
involved firearms, of which six involved APD officers shooting into vehicles.52
Some, but not all, of these incidents were determined by the APD to be
departmental policy violations.53

47

ECF 110-23. The remaining use-of-force reports concerned an officer’s use of
physical force, pepper spray, batons, or tasers.

48

ECF 115, ¶ 46; ECF 110-24; ECF 110-26.

49

ECF 115, ¶ 47.

50

Id. ¶ 48; ECF 110-29.

51

ECF 110-30; ECF 110-32.

52

ECF 115, ¶¶ 50–51.

53

Additionally, not all of these reports indicate whether the APD officers shot

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 23 of 40

Based on this evidence, the Court finds that the City was on notice of the
need to train its officers about the proper justifications for the use of deadly force
and of using such force by shooting into vehicles to stop fleeing felons. Beyond an
isolated incident or random occurrence, Favors presents evidence showing a
regular series of incidents involving firearms and vehicles. This is the precise type
of scenario envisioned by the Supreme Court in Canton; the City should know to
a “moral certainty” that its officers will be required to deal with suspects
attempting to flee in vehicles and need to know when the use of deadly force is
appropriate. In fact, Officer Patrick Fite—the City’s Rule 30(b)(6) representative —
testified that the City maintains an official policy expressly permitting its officers
to fire into moving vehicles in certain circumstances.54 As such, the City was on
notice of the need to train its officers—including Thompson—on this precise type
of situation.
Notice alone, however, is insufficient to establish deliberate indifference.
Favors must go further and demonstrate that the City “made a deliberate choice
not to train its employees.” AFL-CIO, 637 F.3d at 1189. See also Gold, 151 F.3d at
1350. And it is here that Favors’s municipal liability claim falls short.

into a moving or parked vehicle.
54

ECF 105-16 (Fite Dep. Tr. 153:15–155:19).

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 24 of 40

The City points to substantial uncontroverted evidence demonstrating the
level of training it provides to its officers. For example, the P.O.S.T. for the State of
Georgia “sets the standards for training and certification for all Georgia officers.”55
The Georgia P.O.S.T. standard for basic law enforcement training in a police
academy is 408 hours.56 APD requires 401 more hours of basic training in its
academy than required by the P.O.S.T.57 Fite testified that 56 hours of a new
officer’s basic training focuses exclusively on firearms training, both actual
shooting and classroom learning that involves instruction on APD’s Standard
Operating Procedures (“SOP”) on the use of a firearm and use of force.58 All the
basic training courses are taught by APD officers who are P.O.S.T.-certified
instructors.59
After basic training, and pursuant to APD SOP 2084, APD officers are
required to maintain annual training and complete the recertification process, as
mandated by the Georgia P.O.S.T.60 To satisfy the Georgia P.O.S.T. recertification

55

ECF 105, ¶ 29.

56

ECF 105-27, ¶ 33.

57

Id. ¶ 34.

58

ECF 105-16 (Fite Dep. Tr. 24:2–26:4).

59

ECF 118, ¶ 35.

60

Id. ¶ 30.

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requirements, APD officers must annually complete 20 hours of training, which
must include firearms requalification and instruction on the use of deadly force.61
Of the 20 hours of annual continuing-education training that P.O.S.T. mandates,
only one hour of deadly force training is required.62
The APD also maintains a specific SOP in its use of force policy regarding
the proper justification for the use of deadly force:
An employee may use deadly force to apprehend a
suspected felon only when:
1.
He or she reasonably believes that the suspect
possesses a deadly weapon or any object, device, or
instrument which, when used offensively against a
person, is likely to or actually does result in serious
bodily injury and when he or she reasonably believes
that the suspect poses an immediate threat of serious
bodily injury to the officer or others; or
2.
When there is probable cause to believe that the
suspect has committed a crime involving the infliction or
threatened infliction of serious physical harm (O.C.G.A.
Section 17-4-20) and the employee reasonably believes
that the suspect’s escape would create a continuing
danger of serious physical harm to any person.63

61

Id. ¶ 31.

62

Id. ¶ 57.

63

ECF 105-25.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 26 of 40

This policy is intended to mirror both Georgia and federal law regarding the
appropriate use of deadly force.
Favors argues a genuine issue of material fact exists as to whether,
notwithstanding the above, the City adequately trained its officers on the use of
deadly force relating to the proper justification for firing into a moving vehicle. In
support, Favors relies on (1) Thompson’s deposition testimony in this case, and
(2) DeFoe’s expert report.
First, Favors’s reliance on Thompson’s sworn statements is insufficient to
create a genuine issue of material fact. Thompson testified that he believed he
“needed more training,” and the situation in Magic City’s parking lot was
“[s]omething I don’t believe I was quite prepared for.”64 Thompson reiterated that
he did not receive enough training—and could have received more training—on
specific scenarios “dealing with vehicles and shooting, no shooting. Getting more
in depth on reporting felons because you are making a decision based on what
others give you.”65 Thompson further testified that he could not remember
receiving a copy of APD’s use-of-force policy at the police academy, but he was

64

ECF 119-17 (Thompson Dep. Tr. 177:3–13).

65

Id. (Thompson Dep. Tr. 177:21–178:9).

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 27 of 40

aware of certain provisions in the policy related to the use of firearms at the time
he shot Favors.66
Thompson’s subjective feelings as to the adequacy of his training cannot, as
a matter of law, make the City liable for his actions. Viewing the evidence in a light
most favorable to Favors, Thompson’s testimony does not change uncontroverted
law: “That a particular officer may be unsatisfactorily trained will not alone suffice
to fasten liability on the city.” Canton, 489 U.S. at 390–91. See also Blankenhorn v.
City of Orange, 485 F.3d 463, 484 (9th Cir. 2007) (“[E]vidence of the failure to train
a single officer is insufficient to establish a municipality’s deliberate policy.”);
Marable v. W. Pottsgrove Twp., 176 F. App’x 275, 283 (3d Cir. 2006) (“[A] mere
showing that a particular officer violated policy, or that better training would have
enabled the officer to avoid the injury-causing conduct, is insufficient to establish
a municipality’s liability under § 1983 for failure to train.”); Sova v. City of Mt.
Pleasant, 142 F.3d 898, 904 (6th Cir. 1998) (“Allegations that a particular officer was
improperly trained are insufficient to prove liability, as are claims that a particular
injury could have been avoided with better training.”); Campbell v. City of
Philadelphia, 927 F. Supp. 2d 148, 174 (E.D. Pa. 2013) (“[A] police officer’s non-

66

ECF 119-17 (Thompson Dep. Tr. 135:13–136:18).

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 28 of 40

compliance with training is an individual fault and does not demonstrate the
requisite deliberate indifference needed to sustain a claim of municipal liability for
failure to train.”).
Put another way, while Thompson might subjectively believe more training
would have better prepared him for the specific choice he faced in the Magic City
parking lot (i.e., Thompson speculates he may not have shot Favors if the City had
provided him with more training), this does not create a triable issue of fact in this
case against the City. The Supreme Court has rejected this precise theory:
“Neither will it suffice to prove that an injury or accident could have been avoided
if an officer had had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct.” Canton, 489 U.S. at 391. In sum, to hold the City
liable for Thompson’s criminal conduct based on his own subjective belief that he
received an inadequate amount of training would make the City liable under a
theory of respondeat superior—a result explicitly rejected in Monell. Id.
(citing Monell, 436 U.S. at 693–94).
In any event, Thompson’s self-serving characterizations of his training are
contradicted by the undisputed facts in the record. In 2013, Thompson completed
the APD’s police academy, receiving 401 more hours of training than required by

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 29 of 40

the Georgia P.O.S.T.67 Two weeks of Thompson’s training at the police academy
focused exclusively on the use of force and firearms.68 Critically, Thompson—
along with all other APD officers—received training on the specific issue of the
judgmental use of force involving moving vehicles while at the police academy.69
After the academy, Thompson received a total of 112 hours of training in 2014.70
Although only required to complete one hour to satisfy the Georgia P.O.S.T.,
Thompson received eight hours of firearms requalification and training on the
appropriate use of deadly force.71 In 2015, prior to the shooting, Thompson
received 131 more hours of total training.72 During his deposition, Thompson
agreed that the City provided him with more training than is required by Georgia
law.73 Thus, based on the uncontroverted facts above, Thompson’s training met,
or exceeded, the requirements set by the Georgia P.O.S.T.

67

ECF 105-27, ¶ 51.

68

Id. ¶ 52.

69

ECF 105-20; ECF 119-17 (Thompson Dep. Tr. 133:24–134:16).

70

ECF 105-15.

71

Id.

72

Id.

73

Thompson Dep. Tr. 156:17–157:14.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 30 of 40

Finally, simply because Thompson cannot affirmatively remember
receiving a physical copy of the APD use-of-force policy is not dispositive and
does not create a genuine issue of material fact. The record demonstrates that
Thompson received training on the policy while at the police academy. For
example, Fite testified that he specifically provided Thompson with training
according to the policy on the use of firearms.74 Fite testified that this training
involved 56 hours of firearm instruction and included a review of the APD’s useof-force policy.75 Thompson admitted to having received training on the use-offorce policy when he attended the APD academy in 2013.76 The fact that Thompson
cannot post hac remember receiving a physical copy of the policy does not negate
the evidence of his training or create a genuine issue of material fact.77
Second, Favors’s reliance on DeFoe’s expert report is likewise unavailing.
DeFoe opines that Thompson’s actions on October 10, 2015 were unreasonable for
a host of reasons and the APD insufficiently trained Thompson. For example,
DeFoe states that Thompson’s training was inadequate because (1) APD failed to

74

ECF 119-14 (Fite Dep. Tr. 23:18–24:3).

75

Id. at 24:8–25:20.

76

ECF 119-17 (Thompson Dep. Tr. 132:6–9).

77

The City did not present documentary evidence demonstrating that
Thompson received a physical copy of the policy.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 31 of 40

provide Thompson any less-than-deadly-force training for a period of 22 months
(December 14, 2013 through October 10, 2015); (2) APD failed to provide
Thompson the required annual in-service training on firearms requalification and
the use of deadly force; and (3) Thompson did not receive any firearms retraining
or training on the use of deadly force from November 10, 2014 through October
10, 2015.78
As stated above, DeFoe’s opinions as to the adequacy of Thompson’s
training are insufficient to establish municipal liability or create a triable issue of
fact. Canton, 489 U.S. at 390–91. Even if that were not the case, DeFoe’s assertions
are contradicted by the undisputed record. For example, for the 22-month time
period identified by DeFoe—December 14, 2013 through October 10, 2015—
Thompson completed 1,052 hours of total training.79 Some of these hours included
training on de-escalation tactics, which are separate from the use of deadly force.80
Moreover, in May 2015, Thompson received his annual in-service training.81 While
DeFoe may believe Thompson should have been provided more training, which

78

ECF 125, at 7–8.

79

ECF 105-15.

80

Id.

81

Id.

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can certainly be debated, it is undisputed that Thompson’s training exceeded the
amount required by Georgia law. Finally, while DeFoe is correct that Thompson
did not receive a firearms or use-of-force requalification from November 2014
through October 2015, the undisputed evidence shows he completed both
trainings in December 2015.82 Since Georgia law only requires an officer to
complete the requalification once each calendar year, Thompson complied with
the training requirement in this regard. At bottom, DeFoe’s opinions regarding the
adequacy of Thompson’s training do not establish municipal liability for the City.
DeFoe additionally asserts that the City does “not have adequate policies
and procedures in place for when it would be appropriate for officers to shoot into
moving vehicles.”83 DeFoe’s general and conclusory criticism does not pass
muster. Contrary to DeFoe’s opinions, the City does appear to understand the
need for a policy addressing the use of deadly force with respect to moving
vehicles. As such, the City has promulgated APD SOP 3050. Section 4.17.3 of that
SOP specifically prohibits an officer from “[d]ischarging a firearm in an effort to
stop a fleeing vehicle.”84 This section, however, “does not prohibit a police officer

82

ECF 105-15.

83

ECF 117-11.

84

ECF 119-16.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 33 of 40

from using his or her firearm as a lethal force option when it is reasonable and
necessary.”85 Given this discretion, the City provides its officers with training on
this SOP.86 And the City provided its officers—including Thompson—with
training on the judgmental use of deadly force in relation to moving vehicles while
at the police academy.87 This evidence indicates that, rather than turning a blind
eye to the problem, the City had a policy prohibiting the precise type of conduct
Thompson unfortunately exhibited on October 10, 2015. This undermines any
argument that the City acted with the requisite deliberate indifference necessary
to establish municipal liability. Valle v. City of Houston, 613 F.3d 536, 548 (5th Cir.
2010) (“[I]t is difficult to show deliberate indifference in a case such as this one
where the City has implemented at least some training. The very fact that the City
trained a corps of officers in CIT tactics, demonstrates that it was not deliberately
indifferent to the dangers of police interactions with mentally ill residents.”).
That Thompson acted contrary to his training does not make the City liable for his
actions.

85

Id.

86

ECF 119-14 (Fite Dep. Tr. 163:4–15).

87

ECF 105-20; ECF 119-17 (Thompson Dep. Tr. 133:24–134:16).

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 34 of 40

In sum, while Favors argues that the City could have done more to train
Thompson and other APD officers on the use of deadly force in relation to moving
vehicles, Favors does not meet his burden of presenting evidence creating a
genuine issue of material fact on whether the City acted with deliberate
indifference. Canton, 489 U.S. at 391 (“In virtually every instance where a person
has had his or her constitutional rights violated by a city employee, a § 1983
plaintiff will be able to point to something the city ‘could have done’ to prevent
the unfortunate incident.”).
2.

Municipal Liability Premised on a Failure to Supervise.

Favors additionally asserts the City is liable under Monell for failing to
adequately supervise its officers. He packages together an assortment of events he
claims demonstrates deliberate indifference by the City. For example, Favors
claims the City is liable because (1) Thompson failed to properly report his
shooting of Favors; (2) the City failed to properly evaluate and investigate the
incident; and (3) the City routinely failed to document and evaluate use-of-force
incidents involving moving vehicles.
First, Favors’s assertion that Thompson failed to properly report the October
10, 2015 shooting is misplaced in the municipal liability analysis. In essence,
Favors seeks to hold the City liable for Thompson’s personal failure to correctly

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 35 of 40

report the shooting. This falls squarely under a theory of respondeat superior.
Assuming the truth of Favors’s allegations, they fail as a matter of law; the
Supreme Court has explicitly rejected municipal liability in this context. Monell,
436 U.S. at 693–94. See also Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir.
2007) (“[I]t is by now axiomatic that in order to be held liable for a § 1983 violation,
a municipality must be found to have itself caused the constitutional violation at
issue; it cannot be found liable on a vicarious liability theory.”). Nonetheless,
Favors’s contentions are directly contradicted by the record, which indicates that
Thompson submitted an incident report and statement concerning the events.88
Second, Favors’s argument regarding the adequacy of the City’s evaluation
and investigation is likewise unavailing. Favors contends that the City did not
follow the use-of-force “Reporting Requirements” or “Chain of Command
Review” procedures after the shooting.89 However, he fails to articulate how these
alleged failures, even if true, violated his constitutional rights or constituted
deliberate indifference by the City. To the contrary, the City presents evidence that
it investigated the shooting.90 This investigation subsequently led to a finding that

88

ECF 110-4; ECF 119-17 (Thompson Dep. Tr. 138:19–139:12).

89

ECF 110-2, at 20–21.

90

ECF 114, at 12–13.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 36 of 40

Thompson acted without proper justification, a recommendation that he be
terminated from the APD, criminal charges, and ultimately a criminal conviction
of Thompson. This sequence belies any assertion that the City violated Favors’s
constitutional rights or acted with deliberate indifference concerning the need to
investigate. See Schwartz v. Gwinnett Cty., Ga., 924 F. Supp. 2d 1362, 1374 (N.D. Ga.
2013) (“A municipality may be held liable under Section 1983 when its policy or
custom of inadequately training or supervising its officers causes a constitutional
injury.”) (citing AFL-CIO, 637 F.3d at 1188).
Finally, Favors claims the City has “systemically failed to provide complete
reporting, chain of command review, and use of force review and analysis of
officer involved shootings into moving vehicles.”91 Pursuant to APD SOP 2020, a
“[c]omplaint against any Police Department employee will be accepted from any
source at the [OPS] or by any supervisor at any facility in the Department
regardless of the location of the alleged occurrence.”92 In 2015, complaints
involving the serious injury or death of a person allegedly resulting from an action
by an officer were investigated by the APD’s Homicide Unit.93 The Homicide Unit

91

ECF 125, at 12–13.

92

ECF 118, ¶ 36. This SOP became effective on May 29, 2015.

93

Id. ¶ 40.

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was required to contact, interview, and obtain written statements from all
complainants, witnesses, and other employees who were involved in the
complaint, as well as locate documents relevant to the investigation.94 At the
conclusion of the investigation, the investigator was required to determine if each
alleged work rule violation was supported by the facts and issue a disposition. The
investigator could then recommend that the charges be sustained against the
officer.95
Favors claims the City failed to properly supervise its officers by permitting
these incidents to be referred to the Homicide Unit for investigation. Favors also
claims many of the incident reports do not contain a review of the incident from
the allegedly offending officer’s direct supervisor or a sufficient amount of
detailed information to determine if the shooting was justified. According to
Favors, this confluence of facts has systematically prevented the City from
adequately analyzing the APD to ensure no trends exist that would necessitate an
increased amount of training for its officers. These assertions of widespread noncompliance with the APD’s procedures, however, are insufficient to establish
municipal liability.

94

Id. ¶¶ 41–42.

95

Id. ¶¶ 42–47.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 38 of 40

As an initial matter, Favors has failed to show that the City’s actions violated
his constitutional rights. He instead speculates that the City’s internal procedures,
which he does not assert are facially unconstitutional, are suppressing incident
reports concerning an officer’s use of force in relation to a moving vehicle. But
these alleged abuses are not tied to a deprivation of a constitutional right. Without
a constitutional violation, Favors’ municipal liability claim fails. Hines v. Jefferson,
338 F. Supp. 3d 1288, 1305 (N.D. Ga. 2018). Even assuming a constitutional
violation, Favors’s allegations do not establish that the City was aware of any need
to provide greater supervision to its officers in this area. Favors points to no
evidence demonstrating a “widespread pattern of prior abuse” or even a “single
earlier constitutional violation.” AFL-CIO, 637 F.3d at 1189. And, in contrast to the
above situation of officers allegedly not being properly trained to deal with fleeing
felons in moving vehicles, there is no indication that this is the type of scenario in
which a need for increased supervision is so obvious that deliberate indifference
can be demonstrated without an earlier violation or pattern of abuse.
Finally, even assuming a constitutional violation of which the City had
notice, Favors “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.” Gold, 151 F.3d at 1350. He has not met

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 39 of 40

this burden. He fails to present any evidence that the City made an intentional
decision to not investigate officer complaints or to provide only limited factual
material about such complaints for the purpose of hindering potential § 1983
plaintiffs. Instead, the record shows that the City has adopted policies and
procedures

mandating

certain

reporting

requirements.

This

effectively

undermines Favors’s argument. Valle, 613 F.3d at 548.
c.

Favors’s Claim for Attorneys’ Fees

In Count II of the Complaint, Favors asserts a claim for attorneys’ fees
pursuant to 28 U.S.C. § 1988. “Section 1988 authorizes attorney’s fees as part of a
remedy for violations of civil rights statutes; it does not create an independent
right of action.” Estes v. Tuscaloosa Cty., Ala., 696 F.2d 898, 901 (11th Cir. 1983). Since
Favors cannot maintain his municipal liability claim under § 1983, his claim for
attorneys’ fees likewise fails.

Case 1:17-cv-03996-SDG Document 146 Filed 07/23/20 Page 40 of 40

IV.

CONCLUSION
The City’s motion for summary judgment [ECF 105] is GRANTED; Favors’

motion for partial summary judgment [ECF 110] is GRANTED; and the City’s
notice of objection and request for attorneys’ fees [ECF 120] is DENIED. The Clerk
is DIRECTED to enter judgment in favor of the City on Favors’s claims and close
the case.
SO ORDERED this the 23rd day of July 2020.

Steven D. Grimberg
United States District Court Judge