22 F.3d 1570 (11th Cir. 1994), 93-8905, Harrell v. Decatur County, Ga.

Docket Nº:93-8905, 93-9165.
Citation:22 F.3d 1570
Party Name:Linda L. HARRELL, Individually, as Personal Representative, and as Surviving Spouse of Larry Gene Harrell, Deceased, Plaintiff-Appellant, v. DECATUR COUNTY, GA., et al., Defendants-Appellees.
Case Date:June 22, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1570

22 F.3d 1570 (11th Cir. 1994)

Linda L. HARRELL, Individually, as Personal Representative,

and as Surviving Spouse of Larry Gene Harrell,

Deceased, Plaintiff-Appellant,


DECATUR COUNTY, GA., et al., Defendants-Appellees.

Nos. 93-8905, 93-9165.

United States Court of Appeals, Eleventh Circuit

June 22, 1994

Page 1571

Nick M. Bajalia, Valdosta, GA, Charles A. Mathis, Jr., D. James Jordan, Milledgeville, GA, for appellant.

George M. Peagler, Jr., Ellis & Easterlin, Americus, GA, William C. Sanders, Alexander & Vann, Thomasville, GA, for appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before HATCHETT and DUBINA, Circuit Judges, and ESCHBACH [*], Senior Circuit Judge.

HATCHETT, Circuit Judge:

Appellant, Linda Harrell, sued appellees, various Decatur County officials, following the shooting death of her husband. Harrell appeals the district court's order granting summary judgment in favor of all appellees. Because genuine issues of material fact exist concerning the circumstances of her husband's death, we reverse the district court's ruling and remand this case for proceedings consistent with this opinion.


On the evening of October 27, 1990, Decatur County Sheriff's Department Deputy Bob Morris took Annie Jefferson into custody following a domestic disturbance. While transporting Jefferson to the Decatur County Sheriff's Office, Morris observed an automobile, weaving back and forth across the center line of the highway. After calling the dispatcher, Morris turned on the blue lights of his squad car and the driver, Larry Harrell, pulled his automobile off the highway. After Harrell stopped his automobile, Deputy Morris asked him for his driver's license. During the ensuing conversation, Morris smelled alcohol in the vehicle and asked Harrell whether he had been drinking. Harrell replied, "I drank two or three beers."

Based on Harrell's reply, Morris directed him to leave the automobile to take a field sobriety test. Utilizing a device called an Alcansensor, Morris determined that Harrell was legally intoxicated under Georgia law, and arrested him for driving under the influence. Morris then conducted a pat-down search and placed a handcuff on Harrell's left wrist. As Morris attempted to place the other portion of the handcuff on Harrell's right wrist, Harrell attacked Morris. Morris fought back using his flashlight. As the altercation continued, the two men fell to the ground and rolled down an embankment into a ditch. In the ditch, Harrell took Morris's flashlight and hit him with it several times.

Before leaving the ditch, Harrell searched for Morris's revolver, asking him, "[w]here's your gun?" Although his service revolver was hidden in the small of his back, Morris told Harrell that the revolver was on the hill. When Harrell stood up to leave, Morris attempted to follow him, whereupon Harrell kicked him to the ground, threatening to kill him. Harrell then went up the embankment and entered his automobile from the driver's side. Moments later Morris climbed part way up the embankment and began shooting at Harrell through the passenger side of the automobile. Morris fired five shots, striking Harrell three times. Harrell died as a result of the gunshot wounds.

From the back seat of the squad car, Annie Jefferson observed the events leading to Harrell's death. Following the incident, Jefferson gave a statement to the investigator, in which she recalled that immediately after the fight Morris drew his weapon, walked part way up the embankment and shouted, "[h]old it, stop, stop." After hearing Morris shout, Jefferson observed him shoot his revolver

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into the passenger side of Harrell's automobile. She stated that after being shot, Harrell "fell over towards the passenger side of his car." In a deposition given pursuant to this lawsuit, Morris testified that as he approached the automobile, he saw Harrell bent over reaching for something under the passenger seat of the automobile. Morris, however, did not remember giving Harrell any verbal commands and admitted that he never saw a weapon in Harrell's hand or anything resembling a weapon in the automobile.

At the time Morris killed Harrell, the Decatur County Sheriff's Department's Standard Operating Procedure Manual contained the following provision regarding the use of weapons:

10. Weapons Safety and Use. No deputy shall draw his revolver from its holster unless under the following circumstances:

  1. In participation of self-defense or in defense of another.

  2. To stop a known fleeing felon who refuses to stop on verbal command.

  3. On the pistol range during scheduled practice.

.... (Emphasis added.)

This policy, adopted in 1980, authorized a deputy sheriff to use deadly force to stop a fleeing felon after the giving of a verbal command. This policy was in effect when Morris killed Harrell. The policy predated the Supreme Court's decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which limited the use of deadly force to stop fleeing felons.

During his deposition, Decatur County Sheriff E.W. Phillips stated that he retracted the pre-Garner policy contained in provision 10(b), through verbal instructions to the deputies. Phillips, however, could not recall when he gave the verbal instructions or which deputies were present. During his deposition, Deputy Morris testified that although he did not recall receiving a verbal instruction from Sheriff Phillips or other supervisory officers in the department retracting the policy, he knew he could not use deadly force to stop a fleeing felon because he had taken a mandatory state training course covering that topic in July, 1990.


On October 25, 1991, Linda Harrell, Larry Harrell's spouse, filed a ten count complaint under 42 U.S.C. Secs. 1983, 1985, 1986, and 1988 against Morris, Phillips, Decatur County, and members of the Board of County Commissioners, in their individual and official capacities. In her complaint, Harrell sought compensatory and punitive damages for violations of rights secured under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and the laws and Constitution of Georgia.

Following discovery, Phillips and Morris filed motions for summary judgment asserting they were entitled to qualified immunity, in their individual and official capacities, against all claims. Decatur County and the commissioners also moved for summary judgment, asserting that under the facts of this case, no municipal liability arises under 42 U.S.C. Sec. 1983. In summary orders issued June 11, 1993, the district court granted summary judgment in favor of all the appellees, and dismissed Harrell's claims. She appeals.


Linda Harrell contends that the district court erred in granting summary judgment in favor of Morris and Phillips based on qualified immunity because genuine issues of material fact exist that a jury must resolve. Morris and Phillips contend that the essential facts are not in dispute and that Morris acted reasonably in shooting Harrell because Morris was defending himself. Linda Harrell also contends that the district court erred in granting summary judgment for Morris and Phillips, in their official capacity, because qualified immunity does not apply to official capacity claims. Morris and Phillips contend that they are entitled to qualified immunity in their official capacity because Harrell fails to show that a constitutionally deficient policy or custom played a role in Larry Harrell's death.

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Linda Harrell also contends that municipal liability exists against Decatur County and the County Commissioners because inadequate training policies and supervision were the moving forces behind the constitutional violations. The County contends that it is not liable because Harrell fails to demonstrate that the alleged constitutional violations arose from a County policy or the County's failure to supervise the Decatur County Sheriff's Department.

Finally, Harrell contends that the district court erred in dismissing her pendent state claim for nuisance because she stated facts sufficient to withstand a motion for summary judgment. The appellants disagree and assert that Harrell's nuisance claim, like her remaining federal and state claims, does not state a basis for relief on the facts of this case.


The issues we determine on this appeal are whether the district court erred: (1) in granting summary judgment for Phillips and Morris, individually and in their official capacities based on qualified immunity; (2) in granting summary judgment for Decatur County and the Decatur Board of Commissioners, individually and in their official capacities; and (3) in dismissing Linda Harrell's remaining constitutional and pendent state claims.


A. Qualified Immunity

The district court granted summary judgment for Phillips and Morris, in their individual capacities, after determining that they were entitled to qualified immunity. That ruling raises a question of law we review de novo, viewing the facts drawn from the pleadings, affidavits and depositions, in the light most favorable to the appellant. Hardin v. Hayes, 957 F.2d 845, 848 (11th Cir.1992); Swint v. City of Wadley, 5 F.3d 1435, 1439 (11th Cir.1993), modified, 11 F.3d 1030 (11th Cir.1994), petition for cert. filed, 62 U.S.L.W. 3707 (U.S. April 18, 1994) (No. 93-1638). On appeal, we must affirm the district court's ruling if the public officials establish that they are entitled to qualified immunity and no genuine issues of material fact are disputed. Rich v. Dollar, 841 F.2d...

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