647 F.3d 1272 (11th Cir. 2011), 09-10696, Fils v. City of Aventura

Docket Nº:09-10696.
Citation:647 F.3d 1272
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:Cindy FILS, Nemours Maurice, Plaintiffs-Appellees, v. CITY OF AVENTURA, et al., Defendants, Thomas E. Ribel, individually and in his official capacity of Chief of Police for the City of Aventura Dade County Florida, Charles Carlantone, officer # 85-0193, Officer Harvey Arango, Aventura Police Dept., Officer Jason Williams, Aventura Police Dept., Se
Attorney:Tamara McNierney Scrudders, E. Bruce Johnson, Scott D. Alexander, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA, Ft. Lauderdale, FL, Stephanie Deutsch, Harriet R. Lewis, Oliver Gene Gilbert III, Gary Keith Oldehoff, Lewis, Stroud & Deutsch PL, Boca Raton, FL, for Appellants. Louis M. Jepe...
Judge Panel:Before TJOFLAT and COX, Circuit Judges, and KORMAN,[*] District Judge. KORMAN, District Judge, concurring:
Case Date:July 28, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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647 F.3d 1272 (11th Cir. 2011)

Cindy FILS, Nemours Maurice, Plaintiffs-Appellees,

v.

CITY OF AVENTURA, et al., Defendants,

Thomas E. Ribel, individually and in his official capacity of Chief of Police for the City of Aventura Dade County Florida, Charles Carlantone, officer # 85-0193, Officer Harvey Arango, Aventura Police Dept., Officer Jason Williams, Aventura Police Dept., Sean Bergert, officer # 85-0162, Christopher Goranitis, officer # 85-0297, Jeffrey Burns, officer # 85-0142, Defendants-Appellants.

No. 09-10696.

United States Court of Appeals, Eleventh Circuit

July 28, 2011

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Tamara McNierney Scrudders, E. Bruce Johnson, Scott D. Alexander, Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, PA, Ft. Lauderdale, FL, Stephanie Deutsch, Harriet R. Lewis, Oliver Gene Gilbert III, Gary Keith Oldehoff, Lewis, Stroud & Deutsch PL, Boca Raton, FL, for Appellants.

Louis M. Jepeway Jr., Jepeway and Jepeway, Abe Anselheart Bailey, Abe A. Bailey, P.A., Miami, FL, for Appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and COX, Circuit Judges, and KORMAN,[*] District Judge.

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TJOFLAT, Circuit Judge:

This case involves claims of excessive force against local police officers under 42 U.S.C. § 1983, and the officers' corresponding assertion of qualified immunity. The officers moved for summary judgment based on this defense in the district court, and the court denied their motion. They then appealed to this court. We unfortunately found ourselves unable to decide the case, and issued a limited remand to the district court to clarify its opinion. It has done so, and we are now in a position to render a decision.

I.

A.

The initial sequence of events is not in material dispute. On August 23, 2003, Cindy Fils and Nemours Maurice (the " Plaintiffs" ) attended a party together at Broadway Billiards (the " club" ) in Aventura, Florida. Maurice knew the party's promoter. Although the record shows that Maurice assisted the promoter in pre-party logistics, Maurice's clothing did not suggest that he was involved with the party in any official capacity.

The Plaintiffs arrived at the club sometime after midnight and remained at the party without incident for a few hours. This relative peace was disturbed when a female partygoer began making a commotion inside the club. She was yelling and complained that a male partygoer had assaulted her. In an attempt to assist the promoter, Maurice escorted the female partygoer out of the club, where he knew that two police officers for the City of Aventura (the " City" )— Defendant Jason Williams and a non-defendant officer— were stationed. The female partygoer willingly exited with Maurice, but was screaming— " hysterically," according to Maurice— about the alleged assault.

The female partygoer approached the officers, still screaming. Reports conflict, but it appears that the female partygoer charged (or made some other menacing gesture) toward Williams and the non-defendant officer. In response, the non-defendant officer arrested the female partygoer, in the process physically throwing her to the ground.1 A friend of the female partygoer took issue with this treatment and advanced toward the officers. After instructing the friend to stop moving— and seeing that instruction ignored— one of the officers shot the friend with his taser.2 The officers called for backup. Shortly, four more officers— Defendants Sean Bergert, Jeffrey Burns, Harvey Arango, Charles Carlantone, and Christopher Goranitis (collectively, along with Williams, the " Defendants" )— arrived at the scene.3

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It is at this point that the Plaintiffs' and the Defendants' versions of events diverge. Descriptions of the scene vary wildly depending on the storyteller. Maurice and Fils describe the scene outside the club as " calm," though many people were talking about the two arrests, with roughly fifteen to twenty people outside the club. The Defendants and a witness, Nerlange Cineus, describe the scene as far more chaotic, and estimate the crowd to have reached up to forty-five people.

1.

We start first with Maurice's version of his encounter with the Defendants. Following the two arrests,4 Maurice and Fils decided to leave. Maurice first sought out his friend, the promoter, who was standing at the entrance to the club. Maurice and the promoter spoke for a few minutes, with Maurice's back facing the parking lot where the arrests had occurred. During this conversation, Maurice stated— in what he characterized as a normal tone of voice— " they're overreacting, these motherfuckers are overreacting." It is safe to infer that these " motherfuckers" were the police making the two arrests. Maurice then heard a voice behind him say, " what you said, motherfucker?" He turned around to find Bergert several feet away from him, with his taser drawn. Believing the taser to be a gun, Maurice claims that he raised his hands and took a step backward toward the club's entrance. Under Maurice's version of events, neither Bergert nor any officer instructed him to disperse, and he did not make any menacing gestures toward Bergert.

At this point, according to Maurice, Bergert fired his taser at Maurice, causing the taser's probes to lodge in his torso and to release an electric shock. Maurice did not fall down after this first shock. He claims that his knees locked up, and he stood " frozen." 5 Williams's sworn declaration suggests that he observed this encounter.6 Maurice received a second shock when Williams fired his taser probes into Maurice's torso.7 After this second shock, Maurice fell to the ground. He claims that he did not resist any officer's attempts to handcuff him. Once on the ground, however, Maurice claims that Bergert put his knees on Maurice's back and applied a contact tase to the back of his neck, " grinding" the taser and saying " you motherfucker, you motherfucker." He was then handcuffed and led away from the club.

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The Defendants provide a substantially different account of the events surrounding Maurice's arrest. Bergert's police report states that he approached Maurice because he was " yelling and attempting to incite a crowd by yelling ‘ fuck that, you cops ain't right.’ " Bergert's report asserts that this action, combined with the twenty-to-thirty-person crowd, caused a security concern. Bergert claims that he then ordered Maurice to leave the area. Maurice refused and yelled more obscenities at Bergert, who then told Maurice that he was under arrest. According to Bergert, Maurice did not comply, and instead " took a fighting stance" against him. It was at this point that Bergert fired his taser into Maurice's chest. The Defendants claim that Maurice continued to struggle— " swinging his arms" — after this initial tasing, and Williams assisted Bergert by firing his taser at Maurice. Even on the ground, Bergert claims that Maurice continued to resist arrest, at which point he applied his contact taser.

The witness Cineus provides yet a third version of these events. She claims that Bergert issued several dispersal orders to Maurice. She agreed that Maurice did not obey those orders, but stated that Maurice could not obey them because the entrance to the club was blocked, thus depriving him of his one path away from the parking lot. According to Cineus, Maurice was not violent and responded to Bergert's orders by saying, " Wait, wait. I'm on your side. I'm with you guys. Wait, listen, listen." After Bergert's initial tasing, Cineus describes Maurice as " fighting," but only in the sense that he was " still trying to hold himself."

2.

With Maurice on the ground and under arrest, the events of Fils's encounter with the Defendants are also disputed. Undisputed, however, is that the crowd became more agitated after Maurice's arrest. Fils stated that several members of the fifteen-person crowd were shouting at the police, she being one of them.

According to her deposition, Fils was standing several feet from Maurice during his tasering and arrest. Fils agrees with the Defendants that, while Maurice was on the ground, and Bergert was making the arrest, Fils stood behind Bergert, with Bergert's back to Fils. As Maurice hit the ground, Fils began yelling at Bergert, telling him to let Maurice go and that Maurice did not do anything wrong. This verbal incident lasted for approximately thirty seconds.

During her yelling, Fils admits that she took a step forward toward Bergert's back. She asserts, however, that she never made physical contact with Bergert or any other officer. Sometime after this step— the precise moment this step occurred remains unclear— Fils was knocked to the ground by Burns. Knocked unconscious when she hit the ground, Fils does not remember if Bergert applied any force to her. She was then arrested and led from the parking lot.

The Defendants present a different version of Fils's arrest. They claim that Fils jumped on Bergert from behind after Maurice had been subdued. Fils then repeatedly struck Bergert in the head. The Defendants' statements and reports suggest that Bergert administered a contact tase to Fils's upper chest, which enabled Burns to bring her to the ground and make the arrest.

Again, the witness Cineus provided a slightly different version of events. She agreed that, following Maurice's tasing, Fils was yelling at the officers to get off of Maurice, and that Fils advanced toward Bergert's back. Cineus did not state, however, that Fils jumped on Bergert's back. Instead, Fils only made physical contact

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with the officers when she attempted...

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