Terrell v. Smith

• Citation: 668 F.3d 1244,23 Fla. L. Weekly Fed. C 715
• Decision Date: 30 January 2012
• Docket Number: No. 10–14908.,10–14908.
• Parties: Thomas E. TERRELL, as Personal Representative of the Estate of Aaron F. Zylstra, Deceased, Karen Terrell, as the natural parent of Aaron F. Zylstra, John Zylstra, Plaintiffs–Appellees, v. Steve SMITH, individually and in his official capacity as a duly appointed Police Officer of the City of Palm Bay, Florida, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

23 Fla. L. Weekly Fed. C 715

668 F.3d 1244

Thomas E. TERRELL, as Personal Representative of the Estate of Aaron F. Zylstra, Deceased, Karen Terrell, as the natural parent of Aaron F. Zylstra, John Zylstra, Plaintiffs–Appellees,

v.Steve SMITH, individually and in his official capacity as a duly appointed Police Officer of the City of Palm Bay, Florida, Defendant–Appellant.

No. 10–14908.

United States Court of Appeals, Eleventh Circuit.

Jan. 30, 2012.

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

Andrew Ian Dayes, Donovan Adam Roper, Roper & Roper, PA, Apopka, FL, for Defendant–Appellant.

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

Before HULL, MARCUS and BLACK, Circuit Judges.

MARCUS, Circuit Judge:

In this civil rights case, Officer Stephan Smith of the City of Palm Bay Police Department appeals the district court's denial of his motion for summary judgment on the basis of qualified immunity. Tragically, Smith used lethal force against Aaron Zylstra in a fast-paced, unfolding scenario in the early morning hours of June 8, 2007, after Zylstra failed to follow Smith's commands and attempted to flee in a vehicle that struck Smith in the process. Zylstra's parents and Thomas Terrell, the personal representative of Zylstra's estate, claim that Smith used excessive force in violation of the Fourth Amendment, and accordingly they seek damages under Title 42 U.S.C. § 1983 and Florida's wrongful death statute.

After thorough review, we conclude that Officer Smith is entitled to qualified immunity. The use of deadly force was reasonable under the facts and circumstances of this case; what's more, there was no clearly established law at the time of the incident that would have given Smith fair notice that his actions violated the Fourth Amendment. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I.

In reviewing a district court's denial of a motion for summary judgment based on a claim of qualified immunity, we resolve all issues of material fact in favor of the plaintiffs. McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir.2009). Since the facts offered by the passenger in Zylstra's car, Dann Fazio, are generally more favorable to the plaintiffs than those offered by the police officers, we set forth primarily Fazio's account of the events that night.

On the evening of June 7, 2007, Fazio happened upon Zylstra, a childhood friend, at a bar called “The Hustler” on Route A1A in Palm Bay, Florida, at approximately 9:00 or 10:00 P.M. Fazio had not seen Zylstra in three years, although the two had known each other and been friends since junior high school. Fazio arrived at the bar with another friend, Robert Stanley, but elected to stay on with Zylstra after Stanley left. Fazio and Zylstra left The Hustler sometime between 11:30 P.M. and 12:00 A.M. and went to another bar, The Purple Porpoise, but they quickly left that one too because it was almost empty.¹ They proceeded to still another bar, The Side Pocket, where they remained until its closing time of 2:00 A.M. Fazio and Zylstra shared a pitcher of beer at The Hustler and each drank a pitcher at The Side Pocket. In addition to the beer, Zylstra and Fazio each consumed one half bar of Xanax ² at The Side Pocket. Fazio and Zylstra left The Side Pocket and drove to Zylstra's home.

Upon reaching Zylstra's home, Fazio and Zylstra decided to get high and went in search of crack cocaine. Zylstra drove to the trailer of someone he knew and purchased two “rocks” of cocaine. Instead of following their original plan of consuming the cocaine at Zylstra's residence, Zylstra decided to smoke the crack on Maplewood Drive, a deserted area that he considered to be “safe.” Zylstra turned off his headlights but left the engine running, leaving on only the interior dome light. After Fazio and Zylstra each took a “hit” of the crack, police lights illuminated the scene. Fazio said that he then hid the marijuana pipe that they had used to smoke crack “between [his] seat” and stuffed the remaining bars of Xanax that Zylstra had given him into his underwear. Zylstra either spit out or swallowed the remaining crack.

The police officers involved in the incident said that they stopped Zylstra's vehicle because the car had been driven down the street without headlights. Two officers, Clifford Graves and Tom Ribnicky, were working as part of a plain clothes burglary task force during the early morning of June 8, 2007. They were in an unmarked vehicle when they noticed that Zylstra's car was operating without headlights. Graves first saw brake lights and then no lights at all in succession. The officers followed the vehicle, also without their lights on, until they came to a stop some distance behind Zylstra's now-parked vehicle. At some point after seeing Zylstra's vehicle, Graves and Ribnicky contacted Palm Bay Police Officer Steve Smith, who was operating as part of the task force in a marked police cruiser. Smith was asked to “check out” Zylstra's vehicle. Smith relayed the message to another uniformed officer, Jasmine Campbell.

Fazio recounted that the two police officers at the scene directed him and Zylstra to exit their vehicle and kneel down behind Zylstra's car while holding their hands above their heads.³ Fazio said that he knelt immediately behind and slightly to the side of the vehicle. Each officer approached the car from a different side with his weapon drawn. One of the officers remained in front of Fazio, while the other walked towards the driver's side of the vehicle. Although Fazio was compliant with the officers' commands, Zylstra acted as if he were going to kneel down, but instead he turned and jumped back into the vehicle. Officer Smith ran after Zylstra and managed to place himself in the open doorway of Zylstra's car, an area that the parties call “the V,” as Zylstra attempted to make a U-turn in Smith's direction. Smith continued to run in the V alongside the vehicle as it moved forward, repeatedly warning Zylstra to stop the car. The vehicle's door and frame struck Smith's body as Zylstra attempted to turn the vehicle. Fazio testified that “the under part of the open part of the door was hitting [Smith], kind of pushing him back.” After multiple warnings, Smith fired two shots, killing Zylstra.

Zylstra's parents and Terrell filed suit in Florida circuit court, alleging violations of Aaron Zylstra's Fourth Amendment rights and seeking damages under federal and state law. After the case was removed to the United States District Court for the Middle District of Florida, Smith moved for summary judgment on the basis of qualified immunity.⁴ The district court denied Smith's motion, and he now appeals.

II.

Our review of a district court's denial of a motion for summary judgment based on qualified immunity is de novo. Roberts v. Spielman, 643 F.3d 899, 902 (11th Cir.2011) (per curiam). We resolve all issues of material fact in the plaintiffs' favor and approach the facts from the plaintiffs' perspective because “[t]he issues appealed here concern not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of clearly established law.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002) (quoting Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir.1998)) (internal quotation marks omitted). In order to overcome summary judgment because of qualified immunity, “the facts in dispute must raise a genuine issue of fact material to the determination of the underlying issue.” McCullough, 559 F.3d at 1205.

Qualified immunity affords complete protection to government officials sued individually “unless the law preexisting the defendant official's supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant's place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir.2002). The purpose of qualified immunity is to protect officials from the chilling effect that a fear of personal liability would create in carrying out their discretionary duties, McCullough, 559 F.3d at 1205, “protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.” Lee, 284 F.3d at 1194 (internal quotation marks omitted).

Under the well-defined qualified immunity framework, a “public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee, 284 F.3d at 1194 (internal quotation marks omitted). Since there is no dispute that Smith was acting in his discretionary capacity in this case, the burden shifts to the plaintiffs to show that qualified immunity is inappropriate. Id. To do so, the plaintiffs must meet the two-part standard recently reaffirmed by the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). First, the plaintiffs must allege facts that establish that the officer violated Zylstra's constitutional rights; and second, the plaintiffs must also show that the right involved was “clearly established” at the time of the putative misconduct. See id. at 232, 129 S.Ct. 808. This inquiry is “undertaken in light of the specific context of the case, not as a broad general proposition.” Lee, 284 F.3d at 1194. In Pearson, the Supreme Court concluded that a court may assess these factors in any order. 555 U.S. at 236, 129 S.Ct. 808. In this case, the plaintiffs have failed to establish either prong: Officer Smith's actions, when measured against the version of the facts most favorable to the plaintiffs, did not violate Zylstra's Fourth Amendment rights; nor was the law clearly established at the time of the incident, fairly placing Officer Smith on notice that what...