Perez v. Suszczynski

• Decision Date: 12 January 2016
• Docket Number: No. 14–13619.,14–13619.
• Citation: 809 F.3d 1213
• Parties: Karen PEREZ, as Personal Representative of the Estate of Victor Arango, Deceased, Plaintiff–Appellee, v. Michael SUSZCZYNSKI, a Palm Beach County Police Officer, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

809 F.3d 1213

Karen PEREZ, as Personal Representative of the Estate of Victor Arango, Deceased, Plaintiff–Appellee,
v.
Michael SUSZCZYNSKI, a Palm Beach County Police Officer, Defendant–Appellant.

No. 14–13619.

United States Court of Appeals, Eleventh Circuit.

Jan. 12, 2016.

809 F.3d 1216

Andrew A. Harris, Burlington & Rockenbach, PA, West Palm Bch, FL, Matthew David Levy, Metnick Levy & Long, PA, Delray Beach, FL, for Plaintiff–Appellee.

Harriet R. Lewis, Lewis Stroud & Deutsch, PL, BOCA RATON, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:13–cv–80912–DMM.

Before MARCUS and WILSON, Circuit Judges, and SCHLESINGER,^* District Judge.

WILSON, Circuit Judge:

This interlocutory appeal arises from the fatal shooting of Victor Arango by defendant-appellant Michael Suszczynski, a Palm Beach County Sheriff's Deputy, and the subsequent 42 U.S.C. § 1983 action for excessive force brought by plaintiff-appellee Karen Perez, the personal representative of Arango and the administrator of his estate (the Estate). Suszczynski appeals the district court's denial of his summary judgment motion, asking us to reverse the district court and order judgment in his favor on qualified immunity grounds.

Given that Suszczynski's appeal presents a disputed issue of law, we have jurisdiction to review the district court's legal determination that Suszczynski is not entitled to qualified immunity. After considering the parties' briefs, benefitting from oral argument, and thoroughly reviewing the record on appeal, we hold that the district court properly denied summary judgment. Taking the facts in the light most favorable to the Estate, as we must at this stage, Suszczynski is not entitled to qualified immunity. The Estate proffered evidence that Suszczynski fatally shot Arango in the back while Arango was compliant and non-resisting, which constitutes excessive force and violates clearly established law. Therefore, we affirm.

I.

We review de novo the district court's denial of summary judgment and determination that Suszczynski is not entitled to qualified immunity. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002).

As an initial matter, the Estate asserts that the sole issue presented is fact-based and, for that reason, challenges our jurisdiction to consider this interlocutory appeal. A district court's order denying a defendant's motion for summary judgment on qualified immunity grounds is

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immediately appealable despite there being disputed issues of fact, unless the only issue on appeal is the "sufficiency of the evidence relative to the correctness of the plaintiff's alleged facts." See Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir.2000). Here, although Suszczynski devotes some arguments to challenging the factual basis for the denial of summary judgment, Suszczynski does advance an appealable issue—namely, whether he could have reasonably believed his fatal shooting of Arango was lawful under clearly established law, thus entitling him to qualified immunity. See Behrens v. Pelletier, 516 U.S. 299, 312–13, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996) ; Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.1996) (interlocutory jurisdiction exists if the issues on appeal are based "even in part on a disputed issue of law"). Consequently, we may properly entertain the appeal.

At this stage in the proceedings, we view all evidence and factual inferences in the light most favorable to the non-moving party—here, the Estate—and we "resolve all issues of material fact" in the Estate's favor. See Lee, 284 F.3d at 1190. We must review the evidence in this manner "because the 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." Id. (internal quotation marks omitted and alteration adopted). Accordingly, what are considered the "facts" may not turn out to be the "actual" facts if the case goes to trial; rather, they are the "facts" at this stage of the proceedings. See id. (internal quotation marks omitted); Morton v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir.2013). Due to the number of witnesses at the scene, there are numerous, varying accounts of what happened. However, under the appropriate standard, the record supports the following factual account:

In the pre-dawn hours of June 7, 2012, deputies from the Palm Beach County Sheriff's Office were called to respond to an altercation between two women at a sports bar. Ten to twenty people were in the parking lot when the deputies arrived. One of these people was Arango, who was at the rear of a pickup truck. Deputy Thomas Hannigan arrived on the scene first. In two separate police cars, Suszczynski and Deputy Jacob Frey arrived at the bar's parking lot at the same time. The deputies told everyone to get down and put their hands in the air. Arango then got on the ground or was thrown to the ground by Hannigan. After going to the ground, Arango made no attempt to get up or resist police restraint; instead, he remained compliant and prostrate on his stomach, with his hands behind his back. A deputy remarked that Arango had a gun. One of the deputies removed a handgun from Arango's waistband and threw it "pretty far," about ten feet.¹ Suszczynski then shot Arango twice in the back, in a manner one witness described as "execution-style," from approximately twelve to eighteen inches away.

809 F.3d 1218

The legal question of whether Suszczynski is entitled to qualified immunity must be determined "under th[is] version of the facts." See Lee, 284 F.3d at 1190 (internal quotation marks omitted). Accepting this version of events, we hold that no reasonable officer would have shot Arango while he was lying prone, unarmed, and compliant. As set forth below, this conduct violated Arango's Fourth Amendment right to be free from excessive force, and clearly established law gave Suszczynski full and fair warning that the use of deadly force would be unconstitutional under these circumstances.

II.

Qualified immunity protects officers engaged in discretionary functions from civil liability only if the officers' actions do "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Here, because Suszczynski was attempting to arrest or restrain Arango, Suszczynski was "clearly engaged in a discretionary capacity," which means qualified immunity could attach to his actions. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir.2005) ; Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.2008). Thus, to proceed on its claim, the Estate must establish that Suszczynski is not entitled to qualified immunity by showing that the facts alleged make out a violation of a constitutional right and that the constitutional right was clearly established at the time of Suszczynski's conduct. See Hadley, 526 F.3d at 1329.

We conduct a two-part inquiry to assess whether the Estate met this burden.² First, we consider whether, taken in the light most favorable to the Estate, the facts alleged show Suszczynski's conduct violated a constitutional right. See Lee, 284 F.3d at 1194. Then, "[i]f a constitutional right would have been violated under the plaintiff's [here, the Estate's] version of the facts, the court must then determine whether the right was clearly established." See id . (internal quotation marks omitted). Where, as in this case, the district court did not state the facts upon which it based its decision to deny summary judgment, we conduct our own review of the record to determine what facts the district court likely assumed. See Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996).

A. Violation of a Constitutional Right

We first determine whether the facts alleged show the officer's conduct violated a constitutional right. The Estate claims that Suszczynski violated Arango's Fourth Amendment right to be free from excessive force when he fatally shot Arango. See Graham v. Connor, 490 U.S. 386, 394–95, 109 S.Ct. 1865, 1870–71, 104 L.Ed.2d 443 (1989) (holding that the Fourth Amendment's freedom from unreasonable searches and seizures includes the right to be free from excessive force). An officer may constitutionally use deadly force when the officer:

(1) has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others or that he has committed a crime involving the infliction or threatened infliction of serious physical harm; (2) reasonably believes that the use of deadly

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force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.

Morton, 707 F.3d at 1281 (internal quotation marks omitted). Taking the evidence in the light most favorable to the Estate, none of these factors were met, and it is clear that Suszczynski violated...