Banuchi v. City of Homestead
| Citation | 608 F.Supp.3d 1206 |
| Decision Date | 17 June 2022 |
| Docket Number | Civil Action No. 20-25133-Civ-Scola |
| Parties | Altagracia BANUCHI, as personal representative of the estate of Edward Blanton Foster III, and on behalf of the survivors of the estate, E.F., J.F., A.D.F., N.F., M.F., and A.B.F., Plaintiff, v. CITY OF HOMESTEAD and Anthony Green, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Benedict P. Kuehne, Michael T. Davis, Kuehne Davis Law, P.A., Miami, FL, Menachem Mendel Mayberg, Seltzer Mayberg, LLC, Miami, FL, Michael A. Pizzi, Michael A. Pizzi, Jr., P.A., Miami Lakes, FL, Johan Daniel Dos Santos, Kuehne Davis Law P.A., Davie, FL, for Plaintiff.
Eric Lawrence Stettin, Weiss Serota Helfman Cole & Bierman PL, Fort Lauderdale, FL, Anne Reilly Flanigan, Weiss Serota Helfman Cole, Bierman, P.L., Coral Gables, FL, for Defendants.
Order Granting the Defendants’ Motion for Summary Judgment
The controversy in this case centers on, primarily, whether Edward Blanton Foster III was armed and drew his gun prior to being shot and killed by Homestead police officer Defendant Anthony Green. After two rounds of motions to dismiss, two claims remain: a § 1983 claim alleging excessive force against Green, under the Fourth Amendment; and a state-law battery claim under Florida's Wrongful Death Act, asserted against Green and, alternatively, the City of Homestead (the "City"). The Defendants now seek summary judgment, arguing Green is entitled to qualified immunity as to the § 1983 claim; Green is entitled to sovereign immunity as to the battery claim; and in any event, the battery claims against Green and the City are barred by Florida law. (Defs.’ Mot. for Summ. J., ECF No. 60; Defs.’ Stmt. of Facts, ECF No. 59.) Plaintiff Altagracia Banuchi, as personal representative of the estate of Edward Blanton Foster III, and on behalf of the survivors of the estate, E.F., J.F., A.D.F., N.F., M.F., and A.B.F., opposes the motion (Pl.’s Resp., ECF No. 65; Pl.’s Stmt. of Facts, ECF No. 64), arguing, principally, Green had no reasonable suspicion to support his initial investigatory stop of Foster and, thereafter, Green's use of lethal force was excessive because Foster was unarmed and, therefore, never a threat to Green. The Defendants have timely replied. (Defs.’ Reply, ECF No. 68; Defs.’ Reply Stmt., ECF No. 67.) After careful review, the Court finds the Defendants have carried their burden and Banuchi has not come forward with evidence establishing a genuine issue of material fact, requiring resolution of this case through trial. Accordingly, the Court grants the Defendants’ motion for summary judgment (ECF No. 60 ).
On July 16, 2015, a dispatch call was transmitted through the City's police radio system, alerting that a "light-skinned male that was seen that had a firearm" "wearing red basketball shorts and a – a white or black shirt." (Defs.’ Stmt. ¶ 1.) According to the dispatch, the armed man was seen in Blakey Park and then walking east. (Id. ) Although the parties dispute which direction Green traveled from, neither side disputes that Green, alone, in uniform, and in a marked City police car, responded to the call and headed towards the referenced area, near the corner of Redland Road (which runs north/south) and Lucy Street (which runs east/west).2 (Id. ¶¶ 4, 6; Pl.’s Stmt. ¶ 4; Ex F, Aerial Map View, ECF No. 58-6.) The aerial photo, below, depicts the intersection:
As Green neared the area, he saw Foster—"a light-skinned black male," "wearing a black shirt and red basketball shorts"—whose location and appearance matched the dispatch alert. (Defs.’ Stmt. ¶¶ 8, 13, 16; Pl.’s Stmt. ¶ 8 (); ¶ 16.3 )
As the paths of the two men converged, Foster was walking towards the southeast, just east of Redland Road, towards the north face of an abandoned building (shown with a pink roof in the aerial photo, above) on the northeast corner of the intersection of Redland Road and Lucy Street. (Defs.’ Stmt. ¶ 9.) To Green, Foster appeared nervous and agitated, walking at a quick pace and repeatedly looking over his left shoulder, with the left side of his shorts partially pulled down, as if holding a heavy object. (Id. ¶ 11.) In Green's experience, the appearance of Foster's gym shorts was consistent with someone carrying a firearm in their shorts. (Id. ¶ 12.) Green says that based on the totality of the circumstances, known to him at the time, he decided to conduct an investigatory stop. (Id. ¶ 17; see also Green Dep. at 150:7–9 (testifying that the area "has had its share of altercations and shootings").)
Green, in his squad car, approached Foster, with both front windows down, near the north end of the abandoned building. (Defs.’ Stmt. ¶¶ 18, 22.) As he approached, Foster was startled. (Id. ¶ 19; Pl.’s Stmt. ¶ 69.) According to Green, he and Foster then made eye contact, as the front of Green's car pulled within less than ten feet of Foster. (Defs.’ Stmt. ¶¶ 20–21.) Green then drew his gun, pointing it through the windshield, yelling to Foster, now directly in front of the car, (Id. ¶ 23.) Refusing Green's commands, and while facing the right side of the front of Green's car, Foster reached across the front of his body with his right hand and retrieved a gun.4 (Id. ¶¶ 24–5.) Green's description of the gun was consistent with the gun that was later recovered from the scene. (Id. ¶¶ 26–27.)
After pulling the gun from his shorts, Foster held it in his right hand, pointing down, towards the front bumper/grill area of Green's car. (Id. ¶ 28.) As Foster held the gun, Green began yelling to him, "Drop the gun!" (Id. ) Hesitating for just a moment, Foster turned and began running along the north side of the abandoned building, eventually rounding the northeast corner. (Id. ¶ 29.) Green, with his gun still drawn, now pointed through the open passenger-side window, followed Foster, in his car, shouting at Foster to stop running and to drop his gun. (Id. ¶ 30.) Despite Green's commands, Foster moved the gun, still in his right hand, across his body, twisting his torso around toward the left, instantly pointing the gun at Green. (Id. ¶ 33.) At this point Foster was between the east side of the abandoned building and the passenger side of Green's car, with Foster positioned at a two o'clock angle, relative to Green. (Id. ¶¶ 31–2.) Fearing for his life, Green fired his gun, discharging it eight times, through his open passenger-side window, striking Foster. (Id. ¶ 34–6.) Mere seconds had passed between the time Green first pursued Foster and the shooting. (Id. ¶ 52.) As Foster began to buckle towards the ground, Green realized he had struck Foster, and stopped firing. (Id. ¶ 38.) Green also heard the sound of Foster's gun hit the concrete as it fell from his hand. (Id. ¶ 39.) Foster had not fired any shots. (Id. ¶ 37.) Although Green believed any imminent, lethal threat had been neutralized, he continued to keep his gun drawn and ordered Foster to drop his weapon, as he exited his car, cautiously positioning himself behind the engine area of his vehicle. (Id. ¶¶ 40–1.) Green then advised over the radio, and relayed his location. (Id. ¶ 42.) Later, of the eight bullet casings, six were collected from inside Green's car, one was collected from Green after he found it, wedged in his gun belt, and the other was collected from the ground, outside of Green's car, just to the west, near the front, passenger-side window of the squad car. (Id. ¶¶ 53–5; Pl.’s Stmt. ¶ 53.)
In the meantime, another Homestead police officer, Daryl Mays, also responded to the call. (Defs.’ Stmt. ¶ 43.) Because of his location and the timing of his arrival, however, Mays did not witness Green's actually firing at Foster. (Id. ¶ 44)5 However, Mays heard Green's call out of "shots fired" and so had his gun drawn as he proceeded, from the north face, around to the east face of the building, and onto the scene. (Id. ¶ 45.) As Mays rounded the corner, he saw Foster going to the ground. (Id. ¶¶ 46–7.) Mays also noticed the gun, lying next to Foster, and kicked it away, out of Foster's possible reach. (Id. ¶¶ 46–7.) Neither Green nor Mays touched the gun after this and it was later collected by investigating officers from the Miami-Dade Police Department. (Id. ¶¶ 50–1.) Mays handcuffed Foster, initially, but when it became apparent Foster was having trouble breathing, he removed the handcuffs and both Mays and Green began rendering aid. (Id. ¶¶ 48–9.)6 There is no dispute that Green shot Foster eight times, in the back, in broad daylight. (Pl.’s Stmt. ¶ 73.) At least seven of those bullets hit Foster on the left half of his body. (Id. ¶ 74; Defs.’ Stmt. ¶ 74.)
Aside from the factual disagreements highlighted above, Banuchi also frames disputes with the vast majority of the remainder of what is set forth above as well. Her disputes, however, are largely unsupported, as more fully explained below.
To start, Banuchi says she disputes Green's initial observations of Foster, but the support she points to is lacking. (Pl.’s Stmt. ¶ 11.) For example, she cites to the deposition of Julius Hall, a bystander seated in a car, three or so vehicles back from the intersection, heading eastbound on Lucy Street, waiting for the light to change, when he observed Green and Foster. (Hall Dep., ECF No. 63-29.) In the testimony Banuchi cites, Hall says he saw Foster crossing a street, and that he "was just walking normally, like I see a pedestrian walking." (Id. 15:23–24.) But Hall says he saw Foster before he saw Green arrive to the area and counsel made no effort to clarify whether Hall was able to opine on Foster's actual demeanor at the time Green would have first observed him. Further, Hall's description of Foster, from a distance, as "walking normally," does not controvert...
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