Dixon et al v. Georgia Department Of Public Safety et al

Filing 18

ORDER granting in part and denying in part 6 Motion for Judgment on the Pleadings. Defendants' Motion is GRANTED IN PART, as to Plaintiff's state law claims against Williford, and DENIED IN PART, as to Plaintiffs' state law claims against DPS and federal claims against Defendant Williford. The Court in no way rules that the remaining claims will or will not survive summary judgment. Signed by Chief Judge Lisa G. Wood on 9/22/2015. (csr)

N the Wntteb 'tate flitritt Court
for the Soutbern flitritt of deorgia
Prunotairk 1Dibiion
SUE BRANNEN DIXON and JAMES M. *
*
DIXON, JR., as surviving parents of
*
JAMES M. DIXON, III, and JAMES M.
*
DIXON, JR., as Executor of the Estate of
*
JAMES M. DIXON, III,
*
*
Plaintiffs,
*
V.

CV 214-47

*

*
GEORGIA DEPARTMENT OF PUBLIC *
SAFETY and ALBERT HARVEY *
*
WILLIFORD, Individually,
*
*
Defendants.
) TO
On February 19, 2012, a Special Weapons and Tactics ("SWAT") team from the Georgia
Department of Public Safety ("DPS") responded to a situation involving a barricaded gunman in
Appling County, Georgia. A little less than two hours after the first member of the SWAT team
arrived, one of the SWAT team members, Defendant Albert Harvey Williford, shot and killed
the subject of the SWAT team's operation, James M. Dixon, III. This suit was brought against
DPS and Williford individually by Dixon's parents and particularly his father, as Executor of his
Estate. Presently before the Court is Defendants' Motion for Judgment on the Pleadings. Dkt.
No. 6. Upon due consideration, Defendants' Motion is GRANTED IN PART, as to Plaintiffs'
state law claims against Williford, and DENIED IN PART, as to Plaintiffs' state law claims
against DPS and federal claims against Defendant Williford, as explained herein.

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I. Factual Background'
On the morning of February 19, 2012, in Appling County, Georgia, a DPS SWAT team
"responded to a mandatory DPS SWAT call out activation for a barricaded gunman, James M.
Dixon, III[.]" Dkt. No. 1-1, ¶ 18. According to Plaintiffs, the SWAT team members who
responded were acting within the scope of their official duties as DPS employees and were
acting under color of state law. Id. at ¶J 19-20. Fourteen members of the SWAT team arrived at
the designated call-out location between 6:49 am and 8:35 am. Id. at ¶J 21-34. Defendant
Albert Harvey Williford was the third SWAT team member to arrive. He arrived at
approximately 7:32 am. Id. at ¶ 23. Brian Stone arrived in a DPS Bearcat armored vehicle at
roughly 7:35 am. Id. at ¶J 9, 27. Jeff Cain, the CNT crisis negotiator, was the eleventh SWAT
team member to arrive. He arrived at about 8:25 am. Id. at ¶J 13, 31.
Plaintiffs point out that "DPS has clearly defined regulations regarding the composition
and conduct of a DPS SWAT TEAM responding to a barricaded gunman call-out which James
M. Dixon, III constituted on February 19, 2012." Id. at ¶ 37. DPS Policy # 25.02 provides for
the designation of a single Tactical Team Commander on any given call-out activation, and the
SWAT team members become subordinates to that person until the Tactical Team Commander
determines that the activation is over. Plaintiffs allege that the SWAT team that responded to
Dixon's location "failed to designate a single Tactical Team Commander during the CALLOUT[,]" as was provided for in the DPS policy applicable to barricade situations. Id. at ¶J 4147.
To support these allegations, Plaintiffs report the seemingly different understandings of
several officers about who was in charge and what the plan was in responding to the situation.
1

"In determining whether a party is entitled to judgment on the pleadings, we accept as true all material facts
alleged in the non-moving party's pleading, and we view those facts in the light most favorable to the non-moving
party." Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (citation omitted).
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According to Darrell Thigpin, Williford was communicating commands from DPS SWAT
Commander Lieutenant Steven Bone to the SWAT team. Id. at ¶J 10, 36, 48. Thigpin
expressed that Williford conveyed Bone's commands that Dixon was to be contained inside the
team's perimeter, and the team was only to take action if Dixon tried to leave or made an
aggressive action toward the SWAT team. Id. at ¶J 48-49. Williford expressed that, upon his
arrival, he "assumed the lead position for dispatching Georgia State Patrol SWAT to handle the
situation[.]" Id. at ¶ 50. In contrast, Josh Augusta reported that Mark Lamb was in charge, as he
"was the senior member of the team" and because "none of the full time SWAT Commanders
[were] on scene at the time[.]" Id. at ¶J 4, 8, 51. Augusta also stated that DPS SWAT Sergeant
Greg Shackelford3 commanded him to drive the Bearcat to Dixon's front yard. Id. at ¶ 52.
According to Bone, the team's objective was to "[s]et up a perimeter around the
residence and prevent the suspect from leaving[.]" Id. at ¶ 53. Chris Cuddington said the team's
plan was to "negotiate the suspect from the residence. If negotiations failed, then chemical
agents were to be used to persuade the suspect into surrendering[.]" Id. at ¶J 6, 54. Patrick Orr
expressed that the team's plan was to secure the area around the residence and to deploy gas to
persuade Dixon's surrender if negotiations failed. Id. at ¶J 11, 55. Blake Swicord, the highest
ranking SWAT team member on the scene before Dixon was shot, stated that the plan was to
make announcements to Dixon, who was barricaded in the residence and would not respond to
local law enforcement regarding a warrant for his arrest. Id. at ¶J 14, 56. Swicord also stated
that gas would be deployed, and the officers would eventually enter the residence to take "the
primary suspect" into custody. Id. at ¶ 56. Plaintiffs allege that Williford and Lamb, in contrast,

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Bone did not arrive at the call-out location until after Dixon was shot. Id. at ¶ 36.
Shackelford, like Bone, did not arrive at the call-out location until after Dixon was shot. Id. at ¶ 36.

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never reported that the plan was to deploy chemical agents or gas if negotiations with Dixon
failed. Id. atJ 57-58.
According to DPS Policy # 25.08, it is the "policy of the Georgia Department of Public
Safety to provide crisis negotiators, when determined by the SWAT Commander, to
communicate effectively with any potential suicide victim.., or barricaded gunman, regardless
of motivation[.]" Id. at ¶ 74. Plaintiffs maintain that DPS sent Cain, a crisis negotiator, to the
call-out location in order to provide effective communication with Dixon. j4 at ¶J 75-76.
Plaintiffs contend that Cain never communicated with Dixon. Id. at ¶ 77. Instead, Plaintiffs
allege that Lamb, who is not a crisis negotiator, was the only DPS SWAT team member who
communicated with Dixon prior to his being shot. j4 at ¶J 78-79. Plaintiffs further allege that
Lamb never commanded Dixon to disarm or he would be shot. Id. at ¶ 80. According to
Plaintiffs, Lamb's communication with Dixon was ineffective. Id. at ¶ 81.
DPS Policy # 25.02 additionally provides that a DPS SWAT team should establish an
inner and outer perimeter around a barricaded gunman. Id. at ¶ 67. Plaintiffs allege that the
SWAT team failed to exercise due care in executing this rule, because the team failed "to
relocate Appling County Deputy Sheriffs and/or other local law enforcement personnel to a safe
position outside of the DPS SWAT TEAM's perimeter." j4 at ¶ 68. Several SWAT team
members were reportedly concerned for the safety of the deputy sheriffs and other local law
enforcement personnel because of their proximity to Dixon's residence.

I4

at ¶ 69. Swicord did

not feel comfortable with the SWAT team members or deputies being as close as they were to
the residence because he had heard that "the suspect possibly had a long gun." Id. at ¶ 70.
Swicord instructed Lamb to tell the Appling County authorities to back away from the residence,
but he was told "that the Appling County officials had already been advised[.]" Id. at ¶ 71.

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According to Plaintiffs, after the SWAT team's arrival at the call-out location, Dixon
never tried to leave the call-out location. Id. at ¶ 59. In the minutes before his death, Dixon
"turned off the ignition to his running vehicle, removed the keys from the ignition and tossed the
keys to his vehicle into his yard." Id. at ¶ 60. Plaintiffs allege that, after the SWAT team's
arrival at the call-out location, Dixon "never made an aggressive action toward the DPS SWAT
TEAM." Id. at ¶ 61. The DPS SWAT TEAM never deployed any chemical agents or gas. Id. at
¶ 62. Instead, Williford thought that the personnel from the Appling County Sheriffs Office
"were still too close to the scene for safety" and "decided to engage [Dixon] at this time to deescalate the situation before it got worse[.]" Id. at ¶ 72. At approximately 8:42 am, Williford
fatally shot Dixon. Id. at ¶ 35. DPS SWAT Commander Lieutenant Steven Bone, Sergeant Greg
Shackelford, and Corporal Shannon Dockery arrived at the call-out location after Dixon was
shot. Id. atJ36.
Plaintiffs allege that the DPS SWAT Team failed to exercise due care in several respects
in the execution of the DPS regulations, particularly in: failing to establish a single Tactical
Team Commander, failing to follow Bone's call-out directive to take no action unless Dixon
attempted to leave or made an aggressive action towards the SWAT team, failing to deploy
chemical agents or gas, failing to establish an inner and outer perimeter, and failing to effectively
communicate with Dixon. Id. at ¶J 47-82. Plaintiffs allege that these failures caused Dixon's
death, and that DPS should be held liable under state law. Id. at ¶J 84-87.
With regard to Williford specifically, Plaintiffs allege that Williford's conduct occurred
at the call-out location during the process of attempting to arrest Dixon and prior to any detention
on the charges for which Dixon's arrest was being sought. Id. at ¶ 92. Plaintiffs allege that
Williford's use of force in seizing Dixon was abusive, objectively unreasonable and excessive, in

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violation of Dixon's rights under the Georgia and United States Constitutions. Id. at ¶J 97-105.
DPS Policy # 10.01 provides that "[tihe evaluation of a member's use of force will be
undertaken from the perspective of a reasonable member on the scene" and officers "shall
exhaust every other reasonable means available to [him] before resorting to the use of deadly
force[.]" Id. at ¶J 106, 108. Plaintiffs allege that, during the call-out, Dixon never made any
effort to use the firearm in his possession, never pointed the firearm in his possession at anyone,
and never physically or verbally resisted any law enforcement officer. Id. at ¶J 110-112.
Plaintiffs, in sum, maintain that the level of force Williford used was objectively unnecessary,
excessive, and unreasonable, and that his conduct is actionable under 42 U.S.C. § 1983. Id. at ¶J
114, 116.
II. Evidentiary Issues
Defendants ask the Court to take judicial notice of a warrant for Dixon's arrest, which
was issued by the Magistrate Court of Appling County at 6:47 am on the morning of February
19, 2012. Dkt. No. 6-2, p. 3; Dkt. No. 6-1 (warrant). According to Defendants, the warrant
demonstrates that, before any SWAT officers arrived at the call-out location, an arrest warrant
was taken out for Dixon which charged him with aggravated assault. The warrant described that
Dixon shot a high power rifle into Rhonda Hartzog's residence. Id. While Plaintiffs agree with
Defendants that "a district court may take judicial notice of matters of public record without
converting a Rule 12(b)(6) motion into a Rule 56 motion[,]" Halmos v. Bomardier Aerospace
Corp., 404 F. App'x 376, 377 (11th Cir. 2010) (internal citations and punctuation omitted), and
ask the Court to judicially notice two separate items, Plaintiffs object to the Court taking judicial
notice of the arrest warrant. Plaintiffs do not dispute that the warrant is a public record but rather
maintain that Defendants have failed to show that the law enforcement personnel at issue knew

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about the issuance or existence of the record such that it could have influenced their reasoning at
the call-out location. Dkt. No. 12, P. 4. Defendants respond, in part, by arguing that "it is not
plausible that the troopers on the scene would not be told of the subject's dangerous activities
that brought them there[.]" Dkt. No. 15, p. 7.
At this stage in the proceedings, while the existence of the warrant may be a fact capable
of accurate and ready determination "from sources whose accuracy cannot reasonably be
questioned," Fed. R. Evid. 201(b)(2), the Court may not properly take judicial notice of the more
controversial facts that Defendants seek to have the Court acknowledge: that all of the law
enforcement officers present at the scene knew about the existence of the arrest warrant and the
full details of the circumstances justifying its issuance.
Plaintiffs request that the Court take judicial notice of two public records: (1) the Appling
County Sheriff's Department police cruiser dash-cam from the morning of Dixon's death, Dkt.
No. 12-1, and (2) a statement provided by Cain to Bone from the Georgia Bureau of
Investigation's investigative file, Dkt. No. 12-2. Dkt. No. 12, p. 5. Defendants argue that this is
an improper attempt by Plaintiffs to amend their Complaint without amending it, according to
Federal Rule of Civil Procedure 15, and in any event, the information supplied by Plaintiffs only
further supports Defendants' arguments. Dkt. No. 15, pp. 1-2.
The Court is aware that the Eleventh Circuit has deemed it appropriate in certain cases to
allow public records to be considered at an early stage without requiring automatic conversion to
the summary judgment stage, for example, in cases involving public records on file with the
SEC. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1275-81 (11th Cir. 1999). However, as
aforementioned, the parties in this case do not merely want the Court to acknowledge the
existence of the public records at issue, rather, they would have the Court consider the contents

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of those records and impute knowledge of the contents of the records to the many different actors
involved in this case. Thus, the facts the parties want the Court to notice cannot be accurately
and readily determined from sources whose accuracy cannot be reasonably questioned. See Fed.
R. Evid. 201. Given the nature of the documents at issue and the purposes for which the parties
seek to utilize them, the Court declines to take judicial notice of the documents, their import, and
the extent to which each party may have been familiar with them at the motion for judgment on
the pleadings stage of the case.
III. Legal Standard
Federal Rule of Civil Procedure 12(c) provides that a party may move for judgment on
the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial[.]"
"Judgment on the pleadings is proper when no issues of material fact exist, and the moving party
is entitled to judgment as a matter of law based on the substance of the pleadings and any
judicially noticed facts." Cunningham v. Dist. Attorney's Office for Escambia Cty., 592 F.3d
1237, 1255 (11th Cir. 2010) (quoting Andrx Pharm., Inc. v. Elan Corp.. PLC, 421 F.3d 1227,
1232-33 (11th Cir. 2005)). "If a comparison of the averments in the competing pleadings reveals
a material dispute of fact, judgment on the pleadings must be denied." Perez v. Wells Fargo
N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (citation omitted). In assessing a motion for
judgment on the pleadings, the Court "must accept the facts alleged in the complaint as true and
view them in the light most favorable to the nonmoving party." Cannon v. City of W. Palm
Beach, 250 F.3d 1299, 1301 (11th Cir. 2001) (citing Mergens v. Dreyfoos, 166 F.3d 1114, 111617 (11th Cir. 1999)). "[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009)
(citing Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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A motion for judgment on the pleadings pursuant to Rule 12(c) requires a court to assess
the same question as a motion to dismiss under Rule 12(b)(6): whether the complaint has stated a
claim for relief. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,
1295 n.8 (11th Cir. 2002); Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F.
Supp. 1274, 1278 (ND. Ga. 1994) ("A motion for judgment on the pleadings is subject to the
same standard as is a Rule 12(b)(6) motion to dismiss.") (citations omitted). While both parties
reference cases construing Rule 12(b)(6) in their statement of the applicable legal standard in this
case, the Court considers this motion as one for judgment on the pleadings, contrary to Plaintiffs'
suggestion that Defendants' concededly seek relief under Rule 12(b)(6). See United States v.
Bahr, 275 F.R.D. 339, 340 (M.D. Ala. 2011) ("The main difference between [a motion for
judgment on the pleadings and a motion to dismiss] is that a motion for judgment on the
pleadings is made after an answer and that answer may also be considered in deciding the
motion."). Thus, as with a motion to dismiss under Rule 12(b)(6), under Rule 12(c), "[t]he
complaint's allegations must plausibly suggest that the [plaintiff] has a right to relief, raising that
possibility above a 'speculative level'; if they do not, the plaintiff's complaint should be
dismissed." See Boyd v. Peet, 249 F. App'x 155, 157 (11th Cir. 2007) (citing Twombly, 550
U.S. at 555, 570).
Though Plaintiffs suggest that "a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief[,]" Dkt. No. 12, p. 3 (quoting Brooks v. Blue Cross and
Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)), in Twombly, the United States
Supreme Court retired the "no set of facts" language which was previously used to describe the
motion to dismiss standard. Boyd, 249 F. App'x at 157 (citing Twombly, 550 U.S. at 562-63).

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According to Twombly, a complaint warrants dismissal where the plaintiffs fail to "nudge[] their
claims across the line from conceivable to plausible[.]" 550 U.S. at 570.
IV. Discussion
a. State Law Claims
i. Claims against DPS
Under the Georgia Tort Claims Act ("GTCA"), the state of Georgia
waives its sovereign immunity for the torts of state officers and employees while
acting within the scope of their official duties or employment and shall be liable
for such torts in the same manner as a private individual or entity would be liable
under like circumstances; provided, however, that the state's sovereign immunity
is waived subject to all exceptions and limitations set forth in this article.
O.C.G.A. § 50-21-23.
Defendants contend that Plaintiffs' state tort claims against DPS are barred by sovereign
immunity, despite the state's waiver of sovereign immunity, because at least one and possibly
two enumerated exceptions to the waiver are applicable. Dkt. No. 6-2, pp. 8-12. Defendants
first point to O.C.G.A. § 50-21-24(6), which "provides an exception to the waiver of sovereign
immunity for losses resulting from 'the failure to provide, or the method of providing, law
enforcement, police or fire protection[.]" Dkt. No. 6-2, p. 8 (citing O.C.G.A. § 50-21-24(6)). In
Georgia Forestry Commission v. Canady, the Supreme Court of Georgia interpreted this
exception as covering the acts or omissions of state employees in both making policy decisions
and in executing and implementing policies. 632 S.E.2d 105, 109-10 (Ga. 2006). However, the
Supreme Court of Georgia later found this exception to the waiver of sovereign immunity to be
inapplicable to allegations of tortious implementation of valid policies by state employees.
Dep't of Pub. Safety v. Davis, 676 S.E.2d 1, 3 (Ga. 2009). As a result, "[t]he state is not immune
from liability where its employee is implementing a non-defective policy, but does so in a

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negligent manner." Id. Though Defendants generally deny Plaintiffs' contentions that DPS
policies were violated, Dkt. No. 6-2, p. 9, Defendants concede that this exception is not at issue
in this motion, because Plaintiffs have alleged that DPS policies were violated. Dkt. No. 15, p. 4.
Defendants also assert that sovereign immunity bars Plaintiffs' claims against DPS
because of the exception to the sovereign immunity waiver enumerated in O.C.G.A. § 50-2124(7). Dkt. No. 6-2, pp. 9-10. That provision provides that "[t]he state shall have no liability for
losses resulting from. . . (7) [a]ssault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, or interference with contractual rights[.]" O.C.G.A.
§ 50-21-24(7). Plaintiffs maintain that this exception to the waiver of sovereign immunity is
inapplicable because they are not seeking to hold DPS liable for any assault or battery on Dixon.
Dkt. No. 12, pp. 9-10. However, the Supreme Court of Georgia has held that the focus of this
exception is not "on the duty allegedly breached by the State but on the act causing the
underlying loss[.]" Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 545 S.E.2d
875, 878 (Ga. 2001).
Defendants argue that "if a use of force is excessive or unjustified, then it is by definition
an assault and battery." Dkt. No. 6-2, pp. 9-12. The Court is not convinced that this need always
be the case, depending on the facts alleged in the particular case and how they line up with the
elements of those two distinct causes of action. However, if the act causing the underlying loss
alleged by the plaintiffs in a given case constitutes a battery, O.C.G.A. § 50-21-24(7) precludes
the State from being held liable. In Georgia, the Court of Appeals has found that "[a]ny act of
physical violence (and the law will not draw a line between different degrees of violence),
inflicted on the person of another, which is not necessary, is not privileged, and which constitutes
a harmful or offensive contact, constitutes an assault and battery." Greenfield v. Colonial Stores,

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Inc., 139 S.E.2d 403, 405 (Ga. Ct. App. 1964) (citation omitted). Plaintiffs allege that Williford
shot Dixon unlawfully and unnecessarily. Dkt. No.1-i, ¶J 35, 97-105, 114. However, the Court
is not required to accept the legal conclusions in Plaintiffs' Complaint as true. See Igbal, 556
U.S. at 678. With that being the case, the Court does not yet know whether the act that caused
the underlying loss in this case was an assault and battery, because issues regarding the necessity
and privilege of the use of force remain to be decided. As a result, the Court reserves ruling on
whether or not Plaintiffs' state law claims against DPS are barred by O.C.G.A. § 50-21-24(7) at
this time.
ii. Claims against Williford
Defendants maintain that, to the extent Plaintiffs are attempting to assert a state tort claim
against Williford, the claim is barred by the GTCA, which provides that "[a] state officer or
employee who commits a tort while acting within the scope of his or her official duties or
employment is not subject to lawsuit or liability therefor." Dkt. No. 6-2, p. 4 n.3 (quoting
O.C.G.A. § 50-21-25(a)). While Plaintiffs agree with this general principle, they argue that this
issue is not ripe and should be reserved until after discovery is conducted, because of the
possibility that discovery might show that Williford was not acting with the scope of his official
duties or employment with DPS at the time of the relevant conduct. Dkt. No. 12, p. 11.
Plaintiffs allege that the "SWAT team members were acting within the scope of their official
duties and/or employment with [DPS]" during the call-out operation. Dkt. No 1-1, ¶ 19.
Plaintiffs do not point to any facts in the Complaint that would suggest otherwise. In the absence
of anything in the Complaint suggesting that Williford's conduct was outside the scope of his
official duties or employment, Plaintiffs' tort claims against Williford are barred by the GTCA.

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As for Plaintiffs' state constitutional claims against Williford, Defendants argue that there
is no private right of action under the Georgia Constitution. Dkt. No. 6-2, p. 12. Plaintiffs agree
with this contention but suggest that they may have stated a claim against Williford under the
Georgia Constitution by way of the GTCA, and any ruling on this issue should be reserved until
after discovery for the reasons discussed above. Dkt. No. 12, p. 11. Again, given the absence of
any allegation or factual indication that Williford was not acting in the scope of his official duties
or employment, Plaintiffs' state constitutional claims against Williford, to the extent that they
were viable, would be barred by the GTCA. Moreover, as both parties acknowledge, Georgia
has "no equivalent to 42 U.S.C. § 1983, which gives a claim against a state officer individually
for certain unconstitutional acts." Howard v. Miller, 476 S.E.2d 636, 639 (Ga. Ct. App. 1996).
Thus, Plaintiffs have failed to state a claim against Williford under the Georgia Constitution.
b. Federal Law Claims
Plaintiffs bring a Fourth Amendment claim against Williford, pursuant to 42 U.S.C. §
1983, based on his alleged excessive use of force in the seizure of Dixon. Dkt. No. 1-1, ¶J 101104, 116. Defendants argue that Plaintiffs have failed to allege a Fourth Amendment violation
and that Williford is entitled to qualified immunity. Dkt. No. 6-2, pp. 13, 18.
"In order to obtain qualified immunity, an official must first establish that he acted within
his discretionary authority." Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013)
(citation omitted). Here, Plaintiffs do not appear to dispute that Williford acted within his
discretionary capacity when he shot Dixon. Dkt. No. 1-1, ¶ 115 ("WILLIFORD in his individual

The Court reads Plaintiffs' Complaint as asserting federal claims against Williford only. Plaintiffs have never
argued otherwise. In Defendants' Motion for Judgment on the Pleadings, Defendants argue that, to the extent
Plaintiffs are attempting to assert a federal claim against DPS, it would be prohibited by the Eleventh Amendment.
Dkt. No. 6-2, p. 4 n.5. Plaintiffs did not respond to Defendants' argument on this point, which further supports the
Court's reading of the Complaint. CE Hudson v. Norfolk S. Ky. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001)
("When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or
claim abandoned.") (citations omitted).
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capacity does not enjoy immunity for the performance of his discretionary function in using
deadly-force upon James M. Dixon, III."). The burden then shifts to Plaintiffs, who must show
that Williford's conduct violated Dixon's constitutional rights and that the law clearly
established those rights at the time of the alleged misconduct. Morton, 707 F.3d at 1281 (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
"Freedom from unreasonable searches and seizures under the Fourth Amendment
'encompasses the right to be free from excessive force during the course of a criminal
apprehension." Mobley v. Palm Beach Cty. Sheriff Dep't, 783 F.3d 1347, 1353 (11th Cir.
2015) (quoting Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)). The standard for
assessing whether a particular use of force was excessive under the Fourth Amendment is one of
"objective reasonableness." Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (citing Graham
v. Connor, 490 U.S. 386, 388 (1989)).
The Court, in evaluating whether the use of force at issue was objectively reasonable,
must "carefully balance 'the nature and quality of the intrusion on the individual's Fourth
Amendment interests' against 'the countervailing governmental interests at stake' under the facts
of the particular case." Harper v. Perkins, 459 F. App'x 822, 825 (11th Cir. 2012) (quoting
Graham, 490 U.S. at 396). In balancing the need to use some force in making an arrest against
the arrestee' s constitutional rights, courts evaluate several factors, including: (1) the severity of
the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers
or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.
Lee v. Ferraro, 284 F.3d 1188, 1197-98 (11th Cir. 2002) (citing Graham, 490 U.S. at 397). The
Court will assess Williford's actions from the perspective of a reasonable officer on the scene,
rather than through the lens of hindsight, as the Supreme Court has counseled that the

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reasonableness calculus "must embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation." Harper, 459 F.
App'x at 825 (quoting Graham, 490 U.S. 396-97).
i. Severity of the Crime at Issue

Looking to the Plaintiffs' Complaint, Dixon was considered a barricaded gunman who
possibly had a long gun, and there was a warrant for his arrest. Dkt. No. 1-1, ¶J 18, 56, 70. The
Complaint acknowledges that there was a firearm in Dixon's possession. Id. at ¶ 110-11.
Defendants' arguments about the severity of the crime at issue are primarily based on the
contents of the arrest warrant, which the Court has determined are not subject to judicial notice at
this stage in the proceedings. While Defendants suggest that "it is not plausible that the troopers
on the scene would not be told of the subject's dangerous activities that brought them there[,]" 5
Dkt. No. 15, p. 7, the Court is confined to reviewing the pleadings at this stage and to do so in a
light most favorable to the Plaintiffs. That being said, it is unknown, from the Complaint, how
severe the crime was that brought a team of law enforcement officers to Dixon's home on
February 19, 2012. The arrest warrant could have been for a minor, non-violent crime, and
Defendants have not indicated what crime, if any, being a barricaded gunman constituted, in this
case. Viewing the facts in the light most favorable to the Plaintiffs, the Court finds that this
factor weighs in Plaintiffs' favor at this stage in the proceedings. The unknown severity and
possible minor nature of the crime which brought law enforcement to Dixon's residence weighs
against the reasonableness of Williford' s use of deadly force, at least at this very early, prediscovery, stage.

As an aside, the Court disagrees with the certitude of this assertion. This is an issue that would be more
appropriately explored and fleshed out in discovery.
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ii. Immediate Threat to the Safety of the Officers
Plaintiffs allege that Dixon did not attempt to use the firearm in his possession, did not
point the firearm at anyone, and did not physically or verbally resist any law enforcement officer.
Dkt. No. 1-1, ¶J 110-112. Moreover, Plaintiffs contend that Dixon was never warned by any
SWAT team member that deadly force would be used if he did not drop his weapon and
surrender. Dkt. No. 12, p. 18 (citing Dkt. No 1-1, ¶J 79-80). Thus, Plaintiffs contend that the
SWAT team members, including Williford, did not observe Dixon undertaking in any conduct
that posed a threat to the safety of the officers on the scene or to others. Id. Defendants, for their
part, argue that Dixon was outside with a gun, and there was no indication that he was going to
relinquish it. Dkt No. 6-2, p. 16 (citing Dkt. No 1-1, ¶ 60 (Dixon turned off his car), ¶ 111
(Dixon never pointed the firearm in his possession at anyone)). According to Defendants,
Williford thought Dixon was too close to the officers for their safety and decided to fire on him
for their protection. Id. (citing Dkt. No. 1-1, ¶ 72 ("Williford stated 'that the Appling County
Sheriff's Office personnel were still too close to the scene for safety' and 'indicated that he
decided to engage the subject at this time to dc-escalate the situation before it got worse[.]")).
Defendants suggest that while Dixon's removal of the keys from his ignition and throwing them
into the yard lessened the threat to people located away from the call-out location, it did not
diminish the threat to the officers still on the scene, as it allegedly increased the notion that he
was going to stand and fight. Dkt. No. 6-2, p. 17.
Again, at this early stage, this factor can cut both ways. Frankly, it is not possible to state
whether this factor weighs in favor of one side or the other at this time.

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iii. Actively Resisting or Attempting to Evade Arrest by Flight
Plaintiffs allege that Dixon never physically or verbally resisted any law enforcement
officer. Dkt. No. 1-1, ¶ 112. After the SWAT team's arrival, Dixon never tried to leave the callout location. Id. at ¶ 59. Plaintiffs contend that just before he was shot, he turned off his running
vehicle, removed the keys from his ignition, and threw the keys into his yard. jç at ¶ 60.
Defendants argue that, while Dixon was not firing at law enforcement, he was engaged in a
"standoff' with them for hours after the arrest warrant was issued. Dkt. No. 6-2, p. 17 (citing
Dkt No. 1-1, ¶ 21 (first trooper arrived at 6:49 am); Id. at ¶ 35 (Dixon shot at 8:42 am)).
Defendants contend that nothing in the Complaint suggests that a reasonable officer on the scene
would have understood Dixon's actions as an attempt to surrender. Dkt. No. 15, p. 10.
Though the factors are difficult to consider without more information at this stage,
viewing the factual allegations in the light most favorable to Plaintiffs at this stage in the
proceedings, the Court finds that Plaintiffs have stated a plausible claim that Dixon's Fourth
Amendment rights were violated by Williford' s deadly use of force, or that Williford's actions
were not objectively reasonable under the circumstances. If Dixon committed a crime that was
not severe, was not trying to flee, and had not made any aggressive actions towards the officers,
Williford' s decision to "dc-escalate the situation before it got worse" by shooting Dixon, because
the "Appling County Sheriffs Officer personnel were still too close to the scene for safety"
seems at least plausibly unreasonable to an objective officer on the scene. See Dkt No. 1-1, ¶ 72.
Plaintiffs must also show that the law clearly established the rights at issue at the time of
the alleged misconduct in order to divest Williford of the protection of qualified immunity. See
Morton, 707 F.3d at 1281.

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To determine whether or not Williford's conduct was so far beyond the hazy border
between excessive and acceptable force that Williford had to know he was violating the
Constitution even without case law on point, the Court must assess whether it would be clear to
every reasonable officer that the force used was excessive under the circumstances. See Oliver
v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). Though it is certainly not the Court's intention to
engage in hindsight analysis, it must use what little information it has, at this stage, about what
actually happened to inform its analysis about what a reasonable officer on the scene would have
done. Part of the limited information the Court has is that many officers were on the scene and
did not shoot at Dixon or, from what is alleged in the Complaint, contemplate doing so. Only
Williford chose to "de-escalate" the situation "before it got worse[.]" Given these facts, the
Court finds that it is plausible that Williford may not be entitled to qualified immunity because of
the obvious clarity doctrine, and it reserves ruling on whether or not Williford is entitled to
qualified immunity at this stage.
V. Conclusion
Defendants' Motion is GRANTED IN PART, as to Plaintiffs' state law claims against
Williford, and DENIED IN PART, as to Plaintiffs' state law claims against DPS and federal
claims against Defendant Williford. The Court in no way rules that the remaining claims will or
will not survive summary judgment.

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SO ORDERED, this 22ND day of September, 2015.

IL-'

--j

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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