790 F.3d 1286 (11th Cir. 2015), 14-12112, Salvato v. Miley

Docket Nº:14-12112, 14-13424
Citation:790 F.3d 1286
Opinion Judge:WILLIAM PRYOR, Circuit Judge:
Party Name:VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit of Vincent Salvato, surviving parent, Ana Rodriguez, surviving parent, Plaintiff-Appellee, v. DEPUTY LAUREN MILEY, in her individual capacity, Defendant-Appellant. VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit
Attorney:For VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit of Vincent Salvato, surviving parent Ana Rodriquez, surviving parent, (14-12112, 14-13424), Plaintiffs - Appellees: Diana L. Martin, Leslie Kroeger, Adam John Langino, Theodore Jon Leopold, Cohen Mils...
Judge Panel:Before WILLIAM PRYOR, JULIE CARNES, and SILER,[*] Circuit Judges.
Case Date:June 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1286

790 F.3d 1286 (11th Cir. 2015)

25 Fla.L.Weekly Fed. C 1333

VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit of Vincent Salvato, surviving parent, Ana Rodriguez, surviving parent, Plaintiff-Appellee,

v.

DEPUTY LAUREN MILEY, in her individual capacity, Defendant-Appellant.

VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit of Vincent Salvato, surviving parent, Ana Rodriguez, surviving parent, Plaintiff-Appellee,

v.

CHRIS BLAIR, in his official capacity as Sheriff of Marion County, Florida, Defendant-Appellant

Nos. 14-12112, 14-13424

United States Court of Appeals, Eleventh Circuit

June 25, 2015

Page 1287

[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Florida. D.C. Docket No. 5:12-cv-00635-WTH-PRL.

For VINCENT SALVATO, as Personal Representative of the Estate of Joshua Salvato, for the benefit of Vincent Salvato, surviving parent Ana Rodriquez, surviving parent, (14-12112, 14-13424), Plaintiffs - Appellees: Diana L. Martin, Leslie Kroeger, Adam John Langino, Theodore Jon Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Bch Gdns, FL; Kelly Lina Rooth, The Carlyle Appellate Law Firm, The Villages, FL; Janet R. Varnell, Brian W. Warwick, Steven T. Simmons, Varnell & Warwick, PA, Lady Lake, FL; Angela P. Kurtz, Antonio M. Romanucci, Romanucci & Blandin LLC, Chicago, IL.

For LAUREN MILEY, Deputy, Defendant - Appellant (14-12112): Walter A. Ketcham Jr., Ramon Vazquez, Jeanelle Glover Bronson, Philip J. Wallace, Grower Ketcham Rutherford Bronson Eide & Telan, PA, Orlando, FL.

For Service (14-12112): Bruce Robert Bogan, Melissa Jean Sydow, Hilyard Bogan & Palmer, PA, Orlando, FL; John M. Green Jr., Linda LeVines Winchenbach, John M. Green, Jr., PA, Ocala, FL.

For CHRIS BLAIR, in his official capacity as Sheriff of Marion County, Florida, Defendant - Appellant (14-13424): Linda LeVines Winchenbach, John M. Green Jr., John M. Green, Jr., PA, Ocala, FL.

For Service (14-13424): Bruce Robert Bogan, Melissa Jean Sydow, Hilyard Bogan & Palmer, PA, Orlando, FL; Jeanelle Glover Bronson, Walter A. Ketcham Jr., Ramon Vazquez, Philip J. Wallace, Grower Ketcham Rutherford Bronson Eide & Telan, PA, Orlando, FL.

Before WILLIAM PRYOR, JULIE CARNES, and SILER,[*] Circuit Judges.

OPINION

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WILLIAM PRYOR, Circuit Judge:

These consolidated appeals require us to decide two questions arising out of an attempted arrest in which Deputy Lauren Miley shot and killed Joshua Salvato: (1) whether Miley is entitled to qualified immunity against a claim for damages, 42 U.S.C. § 1983, for excessive force in violation of Salvato's rights under the Fourth Amendment; and (2) whether the sheriff of Marion County can be held liable for Salvato's death, id., on the ground that he " ratified" Miley's use of excessive force by failing to investigate the incident. Miley and Deputy Norman Brown attempted to arrest Salvato after investigating reports that he was yelling at passing cars along a Florida road. Salvato struggled, and the officers exchanged blows with Salvato. Without warning, Miley shot Salvato in the abdomen as he backed away from the officers. Brown then discharged his Taser into Salvato 12 times, including multiple times after Miley had handcuffed Salvato. Salvato died from internal bleeding from the gunshot wound. The sheriff of Marion County did not order an internal affairs investigation of the incident; he instead relied on investigations by a Florida grand jury and the Florida Department of Law Enforcement. The sheriff took no disciplinary action against Miley. Salvato's estate filed an action for damages against Miley in her individual capacity and the sheriff in his official capacity, id. The district court denied Miley's motion for summary judgment based on qualified immunity, and Miley appealed. When the claims against the sheriff went to trial, the jury returned a verdict in favor of Salvato's estate, and the district court later denied the sheriff's motion for judgment as a matter of law. The sheriff appealed, and we consolidated his appeal with Miley's appeal.

We affirm in part and reverse in part. When we view the facts in the light most favorable to Salvato, we conclude that it is clearly established that Miley's use of deadly force was excessive and that she should have intervened against Brown's use of excessive force. We affirm the denial of Miley's motion for qualified immunity and remand for further proceedings. But the record contains no evidence that Miley's violation of Salvato's federal civil rights was attributable to the sheriff. Because a single failure to investigate an incident is insufficient to establish ratification, we reverse the denial of the sheriff's motion for judgment as a matter of law and render a judgment in his favor on the claim of excessive force.

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I. BACKGROUND

We divide our discussion of the background in three parts. First, we explain the incident that led to Salvato's death. Second, we explain the response of the sheriff to that incident. Third, we explain the procedural history.

A. The Shooting

At night, Miley responded to reports of a disturbance along Southeast Sunset Harbor Road in Marion County, Florida, that a " Hispanic looking male with no shirt" was " yelling and cussing at passing cars." Miley found Salvato along the side of the road. He was alone, walking in the road, shirtless, with nothing in his hands. Miley instructed Salvato to come to her car, and he complied. He did not have a weapon nor was he aggressive as he walked over. Without being asked, he put his hands on the hood of the car and spread his legs apart. Miley did not handcuff him because she did not perceive him to be a threat. Miley asked him if he had any weapons, and he replied that " all [he] had was bread," and he pulled bread out of his pockets. Miley did not pat him down, but she saw that there were no weapons tucked inside his waistband. According to Miley, Salvato " was just talking irrationally" and stated " he wasn't going to jail," even though Miley never mentioned jail. He tried to walk away twice, but both times Miley placed her hand on his chest to keep him from leaving. Miley felt intimidated and called for expedited backup.

Deputy Brown arrived, and much of the remaining incident was recorded by his in-car dashboard camera. When Brown arrived, Salvato and Miley were talking to one another, arms-length apart, and there was no apparent confrontation. When Brown exited the vehicle he did not communicate with Miley but instead drew his gun and ordered Salvato to the ground. Salvato looked surprised but immediately complied. Brown pulled Salvato's arms backwards. When Miley attempted to handcuff Salvato, he began to struggle. He rose to his knees, and both deputies attempted to wrestle him to the ground. They exchanged blows. Salvato broke free and stepped backwards, away from the officers. Brown then began to reach for something from his belt, and Salvato rushed towards Brown and hit him again. Miley attempted to intervene, and Salvato hit her in the head, knocking her down. Salvato again retreated, this time far enough that he was outside of the view of the camera, around 10 to 15 feet away from Miley. Miley drew her handgun and shot Salvato in the abdomen without giving him any verbal warning.

Although he had been shot, Salvato continued to walk on the road. Brown ordered Salvato to get on the ground, and when Salvato did not comply, Brown discharged his Taser into Salvato. Salvato fell to the ground on his back after the Taser discharged. Brown ordered Salvato to roll onto his stomach and discharged the Taser again when Salvato did not immediately comply. Brown ordered Salvato to show his hands, and Brown again discharged the Taser when Salvato did not comply. As Brown continued to discharge the Taser, Miley communicated for emergency medical assistance, retrieved her flashlight from the ground, and took Brown's handcuffs to restrain Salvato. The internal memory of the Taser recorded 12 discharges during the incident. Brown discharged the Taser multiple times after Miley handcuffed Salvato. Brown later asserted that he did so to keep Salvato from reaching into his back

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pockets. Miley also kicked Salvato's hand at one point when it appeared to her that he was trying to reach into his back pocket. Miley later testified that she was capable of telling Brown to stop discharging the Taser, but she did not because she " had just gone through a traumatic event, and [she] wasn't really thinking about what [Brown] was doing." At no point did either deputy check Salvato's back pockets or search him. Salvato was unarmed.

By the time paramedics arrived, Salvato had died from internal bleeding. Miley suffered no injuries, and Brown sustained a minor eye injury.

B. The Response of the Sheriff's Office

A Marion County Sheriff's Office Operations Directive details the required response to a police shooting. The directive requires a supervisor to submit a " Green Team Report" of " recommendations and/or action taken." That report is an internal investigation by the Sheriff's Office to determine whether a deputy has violated any policies or directives. The directive requires that, when a police shooting results in a death, the State Attorney's Office and the Florida Department of Law Enforcement must be notified, and one of these offices or the Sheriff's Office conducts an investigation.

After the Florida Department conducted an investigation, the State Attorney presented the case to a grand jury to decide whether to file criminal charges. The grand jury did not indict Miley. The investigation by the Florida Department did not provide any opinion about whether Miley violated Salvato's constitutional rights or the policies and directives of the...

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