Brescher v. Pirez

• Decision Date: 15 January 1997
• Docket Number: No. 95-0175,95-0175
• Citation: 696 So.2d 370
• Parties: 22 Fla. L. Weekly D1080, 22 Fla. L. Weekly D210 George BRESCHER, as former Sheriff of Broward County, Florida, and Paul Dean and Kevin McNesby, as individuals, Appellants, v. Miguel PIREZ, Appellee. Fourth District
• Court: Florida District Court of Appeals

Page 370

696 So.2d 370

22 Fla. L. Weekly D1080, 22 Fla. L. Weekly D210

George BRESCHER, as former Sheriff of Broward County, Florida, and Paul Dean and Kevin McNesby, as individuals, Appellants, v. Miguel PIREZ, Appellee.

No. 95-0175.

District Court of Appeal of Florida,

Fourth District.

Jan. 15, 1997.

Order Denying Rehearing

April 30, 1997.

Rehearing and Rehearing

En Banc Denied July 1, 1997.

Robert M. Klein and Louise H. McMurray of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for appellants.

David J. Finger of Levine & Finger, and Arthur J. England and Elliot H. Scherker of

Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for appellee.

WARNER, Judge.

This claim for civil damages under the Civil Rights Act, 42 U.S.C. section 1983, arises from a shooting incident in 1984 in which plainclothes sheriff's deputies used deadly force in attempting to arrest a van full of people fleeing from the scene of a burglary. The deputies and the former sheriff of Broward County claim that the deputies were entitled to qualified immunity for their acts. We hold that the deputies were entitled to qualified immunity, and that the trial court erred in denying the deputies' motions for summary judgment, directed verdict, and judgment notwithstanding the verdict on this issue. We also hold that the claim against former sheriff Brescher is barred by res judicata.

At approximately 12:40 a.m. on June 22, 1984, the police received a 911 call from a resident of an apartment complex in Broward County. She reported that from her apartment she was observing a group of men moving from car to car in the parking lot below her. Some members of the group were trying to remove the radio from a convertible. Another member of the group was backing out in a black van with an orange and yellow stripe, as if getting ready to leave. The appellant deputies, members of the Selective Enforcement Team consisting of plainclothes officers whose job it was to handle felony-in-progress calls, heard the dispatcher's report of the 911 call and went to the scene. From a clearing in the shrubbery across the parking lot, the deputies observed the van, the convertible, someone leaning over the convertible, and a group of about four or five males. Appellee Pirez, the driver of the van, admitted to being one of the group, although he denied taking part in the burglary of the car. Suddenly, the group around the car began to run and jump into the van which Pirez was driving. The deputies began to run toward the van with their guns out.

At this point, many facts are in dispute. The deputies testified that they believed they had been spotted by the group in the van, while members of the van group testified that they began to run and jump into the van when they heard someone scream "they have got guns." The deputies testified that they were all shouting things like "halt, police, freeze, sheriff's department, don't move," and that two of the officers had their badges out. Appellee Pirez testified that he could see the men running with guns towards the van yelling, but that he could not understand what they were saying. Although one of the van members testified that he saw a badge on one of the officers as he approached the van, the appellee and another van occupant testified that they did not know that the men were police officers.

Two of the deputies, McNesby and Ciacciarrelli, ran to the passenger side of the van, and deputy Dean approached the van from the front. Dean testified that as he ran towards the van, he observed the driver try to start the van. While Dean claimed the van lurched forward and hit him, none of the occupants of the van saw the van strike Dean. Somehow Dean appeared at the driver's window, and it is undisputed that he stuck his gun in the window at Pirez, the driver. It is also undisputed that at that point Pirez put the van into gear and accelerated. Dean testified that he had both hands inside the vehicle and was dragged when the van accelerated. Dean then fired into the vehicle, striking Pirez. He fired in order to extricate himself and prevent Pirez from accelerating further. The van occupants, on the other hand, testified that Dean had only one hand in the vehicle and was holding onto the door and running along side the van when he shot at Pirez.

In the meantime, McNesby testified that when he heard Dean scream as the van accelerated, he too shot at Pirez to avoid further injury to Dean. The shots fired by Dean and McNesby injured Pirez and killed Torres, another occupant of the van.

Pirez filed suit against the former sheriff and Deputies Dean and McNesby claiming that the deputies had violated his civil rights by using excessive force against him. ¹ After a jury verdict in favor of Pirez, appellants have lodged this appeal.

The deputies claim that they were entitled to qualified immunity from suit. The trial court denied the deputies' motions for summary judgment, directed verdict, and judgment notwithstanding the verdict on this issue.

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), the Supreme Court rejected the defense of absolute immunity for most governmental officials performing executive branch functions but agreed that such officials could claim qualified immunity for actions in the performance of their duties. Allowing actions for damages for substantial claims of abuse of power would act as a check upon public officers in the performance of their duties. It was necessary, however, to prevent the continuation of "insubstantial lawsuits":

[I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties."

457 U.S. at 814, 102 S.Ct. at 2736 (footnote and citation omitted). The Court held that government officials performing discretionary functions are protected by qualified immunity from liability for civil damages in section 1983 actions unless a reasonable person would have known that the questionable conduct violated clearly established law. Id. at 818, 102 S.Ct. at 2738. This rule, the Court believed, would strike the proper balance:

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken "with independence and without fear of consequences."

Id. at 819, 102 S.Ct. at 2739 (footnote and citation omitted).

Both parties recognize that the rule of Harlow applies to this case. See also Goetz v. Noble, 652 So.2d 1203 (Fla. 4th DCA 1995). We also have previously noted that qualified immunity "shields 'all but the plainly incompetent or those who knowingly violate the law.' " DeWald v. Wyner, 674 So.2d 836, 839 (Fla. 4th DCA 1996) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)). The issue then becomes whether the officers violated clearly established law which applied on the date of the incident.

In asserting qualified immunity, it is first the officer's burden to establish that he was acting within the scope of discretionary authority; the burden then shifts to the plaintiff to show that the officer's action violated the plaintiff's rights in light of clearly established law. McGory v. Metcalf, 665 So.2d 254, 258-59 (Fla. 2d DCA 1995), rev. denied, 672 So.2d 543 (Fla.1996). Both parties agree that Dean and McNesby were acting within the scope of their employment. Therefore, Pirez had the burden of proving that the officer's actions violated his rights in light of clearly established law.

In 1985, the United States Supreme Court held in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), that the use of deadly force to apprehend a fleeing felon is excessive and a violation of a person's constitutional right if the suspect poses no imminent threat to the police or to the public. However, because this incident occurred prior to the rendition of Garner, we must analyze the issue of whether the officers violated clearly established law on pre-Garner precedent. See Hamm v. Powell, 874 F.2d 766 (11th Cir.1989), modified on other grounds on reh'g in part, 893 F.2d 293 (11th Cir.), cert. denied, 496 U.S. 938, 110 S.Ct. 3218, 110 L.Ed.2d 665 (1990).

Section 776.05, Florida Statutes (1983), provided:

[A law enforcement officer] is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.

In City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA), cert. denied, 341 So.2d 292 (Fla.1976), the court stated:

Under the decisional law of this state, when an officer has reasonable grounds to believe one has committed a felony, the officer is entitled to use force which is reasonably necessary to capture him, even to the extent of killing or wounding him.... This right does not depend on the type of felony which has been committed.

Id. 330 So.2d at 257-58; see also City of Miami v. Nelson, 186 So.2d 535 (Fla. 3d DCA), cert. denied, 194 So.2d 621 (Fla.1966). In Gordon v. Alexander, 198 So.2d 325 (Fla.1967), our supreme court held that a police officer...