605 F.3d 843 (11th Cir. 2010), 09-13092, Penley v. Eslinger

Docket Nº:09-13092.
Citation:605 F.3d 843
Opinion Judge:MARTIN, Circuit Judge:
Party Name:Ralph J. PENLEY, Donna Penley, as Co-Personal Representatives of the Estate of Christopher David Penley, Deceased; and as natural parents of Christopher David Penley, Plaintiffs-Appellants, v. Donald F. ESLINGER, as Sheriff of Seminole County, Michael W. Weippert, individually, Defendants-Appellees.
Attorney:James E. Taylor, Jr., J. Edwin Mills, Law Office of J. Edwin Mills, Orlando, FL, for Plaintiffs-Appellants. Donald Andrew DeBevoise, Jeffrey K. Grant, DeBevoise & Poulton, P.A., Winter Park, FL, for Defendants-Appellees.
Judge Panel:Before DUBINA, Chief Judge, and MARTIN and COX, Circuit Judges.
Case Date:May 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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605 F.3d 843 (11th Cir. 2010)

Ralph J. PENLEY, Donna Penley, as Co-Personal Representatives of the Estate of Christopher David Penley, Deceased; and as natural parents of Christopher David Penley, Plaintiffs-Appellants,

v.

Donald F. ESLINGER, as Sheriff of Seminole County, Michael W. Weippert, individually, Defendants-Appellees.

No. 09-13092.

United States Court of Appeals, Eleventh Circuit.

May 3, 2010

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[Copyrighted Material Omitted]

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James E. Taylor, Jr., J. Edwin Mills, Law Office of J. Edwin Mills, Orlando, FL, for Plaintiffs-Appellants.

Donald Andrew DeBevoise, Jeffrey K. Grant, DeBevoise & Poulton, P.A., Winter Park, FL, for Defendants-Appellees.

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

Before DUBINA, Chief Judge, and MARTIN and COX, Circuit Judges.

MARTIN, Circuit Judge:

Christopher David Penley, a fifteen-year-old boy, modified a plastic air pistol to look like a real weapon and brought it to school. School officials called the police and, during the ensuing standoff, Lieutenant Michael W. Weippert fired a single shot, striking Mr. Penley in the head. The

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wound proved fatal. Ralph J. Penley and Donna Penley, acting as personal representatives of their son's estate, filed suit, seeking relief under both federal and state law. They alleged that under the circumstances lethal force was unnecessary and excessive, and, therefore, that Lieutenant Weippert had deprived their son of his Fourth Amendment rights. The district court disagreed, finding Lieutenant Weippert's decision reasonable and granting Lieutenant Weippert and his co-defendant, Sheriff Donald F. Eslinger, summary judgment.

The loss of such a young life is an undeniable tragedy. However, with their suit, the Penleys ask us to conduct precisely the sort of 20/20 hindsight inquiry against which the Supreme Court and this Court have repeatedly cautioned. We therefore affirm the district court's grant of summary judgment.

I.

On January 13, 2006, Mr. Penley, a fifteen-year-old student at Milwee Middle School, brought a pistol to campus. Eventually his teacher learned that he was armed, and, as students fled from the classroom, Mr. Penley briefly held hostage at least one classmate. By the time police officers arrived, that student had escaped and Mr. Penley had left the classroom, making his way through campus.

When an officer of the Seminole County Sheriff's Office confronted Mr. Penley, commanding that he drop his weapon, the boy held the gun under his own chin, responded that he was going to die one way or another, and " slithered" into a bathroom. The bathroom had only one entrance, an overhead, roll up style door which remained open throughout the standoff that followed.

As police began to arrive on the scene, Sheriff's Deputy Christopher Maiorano took up a position approximately sixty-five feet from the entrance to the bathroom. He attempted to communicate with Mr. Penley, but was only able to elicit the boy's name. Mr. Penley walked back and forth from one side of the bathroom to the other, pointing his weapon alternately in Deputy Maiorano's direction and at his own chin. In an effort to get Mr. Penley to drop his weapon, Deputy Maiorano holstered his own and showed Mr. Penley his hands. Instead of dropping the weapon, Mr. Penley pointed his gun directly at the officer. In his deposition, Deputy Maiorano testified: " When he did that, I hugged the wall. I didn't want to get shot. [I] [g]rabbed back for my weapon. At that point I never put my weapon back in the holster." In a sworn statement, Deputy Maiorano also acknowledged that " when [Mr. Penley] drew down on me ... I was scared, noticeably scared." Operating under the belief that the weapon was real, Deputy Maiorano announced " to everyone on scene" that Mr. Penley was wielding a large semiautomatic pistol.

Meanwhile, Sergeant Kevin Brubaker, a trained hostage negotiator, took up a position in front of the bathroom door. Sergeant Brubaker was still negotiating with the boy when Lieutenant Weippert fired the fatal shot. But, because Sergeant Brubaker had slid into a safer position, he was unable to see Mr. Penley at the moment the fatal shot was fired. Over the course of the negotiation, Mr. Penley had only once responded to Sergeant Brubaker's questions-revealing his name and age-and had refused to comply with the sergeant's repeated requests that he put down the gun. Sergeant Brubaker testified that not once during the negotiation did Mr. Penley point his weapon at the sergeant, nor did the sergeant feel threatened by the boy.

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Lieutenant Weippert, a member of the SWAT team since 1989 and firearm use and defensive tactics instructor at Seminole Community College, was called to the scene. Shortly after arriving, he moved to assist Deputy Maiorano. Armed with a scoped semiautomatic rifle, Lieutenant Weippert observed Mr. Penley as the boy moved across the frame of the open bathroom door three times. Each time, Mr. Penley aimed his gun at Lieutenant Weippert and Deputy Maiorano.

On Mr. Penley's third pass, Lieutenant Weippert " began to conclude" that the boy posed a danger to the lieutenant himself, " to others and to the children that were exposed to that open area." At approximately 10:20 a.m., Mr. Penley began to make another lateral pass across the threshold of the open door, pointing his gun at Lieutenant Weippert and Deputy Maiorano. Serving as spotter, Deputy Maiorano gave a signal and Lieutenant Weippert fired a single shot, striking Mr. Penley in the head. It was not until after the shot was fired that police entered the bathroom and discovered that the gun was not real. Mr. Penley died two days later.

According to Lieutenant Weippert, during the incident, he was concerned not only with assisting Deputy Maiorano, who was under the lieutenant's protection, but also with assuring the safety of the children whom he believed occupied the surrounding classrooms. For instance, the bathroom was adjacent to a portable classroom. This classroom, though occupied by children for at least a portion of the standoff, was at some point evacuated. However, as Lieutenant Weippert made his way to Deputy Maiorano, he was under the impression that there were children in the room and believed that they had been instructed to stay in that room. Once he was situated beside Deputy Maiorano, his concern turned to children in rooms with exposed windows. The presence of children in at least some of the surrounding buildings is corroborated by the sworn statement of Sergeant Thomas Johnson of the Seminole County Sheriff's Office. Sergeant Johnson, who was positioned above the bathroom during the standoff, saw children moving about behind the windows of several classrooms located to the rear of the officers. He saw these students lifting up the window blinds and peering out. Sergeant Johnson also observed the silhouette of a person behind the glass doors of another classroom.

Following the death of their son, the Penleys filed a Complaint in the Circuit Court of Seminole County, Florida, which Defendants Sheriff Eslinger and Lieutenant Weippert removed to the U.S. District Court for the Middle District of Florida. With their Amended Complaint, the Penleys sought relief pursuant to 42 U.S.C. § 1983 and the Florida Wrongful Death Act, Fla. Stat. §§ 768.16-.26. They allege that Lieutenant Weippert used excessive force when he shot Mr. Penley, depriving the boy of his Fourth Amendment rights. Meanwhile, they claim that Sheriff Eslinger, and through him Seminole County, caused Mr. Penley's Fourth Amendment deprivation by promulgating a use of force policy that allowed officers to use deadly force without giving a warning. Furthermore, they argue that Sheriff Eslinger, as Lieutenant Weippert's employer, should be found liable under Florida law for his employee's tortious conduct.

Sheriff Eslinger and Lieutenant Weippert filed separate motions for summary judgment. The district court granted both, holding that Lieutenant Weippert had not violated the Fourth Amendment and was not liable under state law. The Penleys appeal, insisting that genuine issues of material fact preclude resolution of their claims at this stage.

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II.

We review de novo a district court's grant of summary judgment and apply the same legal standards that governed the district court's analysis. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1194 (11th Cir.2010).

Summary judgment is appropriate only when " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). In determining the relevant set of facts at the summary judgment stage, we must view all evidence and make any " reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party." Rine v. Imagitas, Inc., 590 F.3d 1215, 1222 (11th Cir.2009). However, we draw these inferences only " to the extent supportable by the record." Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 1776 n. 8, 167 L.Ed.2d 686 (2007) (emphasis omitted). Thus, the requirement to view the facts in the nonmoving party's favor extends to genuine disputes over material facts and not where all that exists is " some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In other words, once a moving party has carried its burden under Rule 56(c), " the non-moving party must produce substantial evidence in order to defeat a motion for summary judgment." Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.2009). A dispute over a fact will only preclude summary judgment if the dispute " might affect the outcome of the suit under the governing...

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