Brown v. City of Clewiston, 83-8065-Civ.
| Decision Date | 22 September 1986 |
| Docket Number | No. 83-8065-Civ.,83-8065-Civ. |
| Citation | 644 F. Supp. 1417 |
| Parties | Joseph Todd Eric BROWN, Plaintiff, v. CITY OF CLEWISTON and Luis Perez, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
John Cecilian, Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, Fla., for defendants.
Michael Nugent, Cone, Wagner, Nugent & Johnson, P.A., West Palm Beach, Fla., for plaintiff.
ORDER GRANTING PEREZ' MOTION FOR SUMMARY JUDGMENT: FINDINGS OF FACT CONCLUSIONS OF LAW
This cause is before the Court for consideration of the motion for summary judgment (D.E. # 63) filed by defendant LUIS PEREZ (hereafter referred to as "PEREZ") pursuant to Rule 56 of the Federal Rules of Civil Procedure. PEREZ contends that there exists no genuine issue of material fact left to be decided and that he is entitled to judgment as a matter of law. We agree.
This civil rights claim against the City of Clewiston and Officer Perez was filed in 1982. The amended complaint alleges that these defendants deprived plaintiff BROWN of constitutional rights secured to him through the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution, under color of law, in violation of the Civil Rights Act of 1861, 42 U.S.C. § 1983. The plaintiff includes two (2) pendant claims for negligence (Count II) and assault and battery (Count III) against both defendants1 as well. All of these claims are predicated on a shooting incident which occurred in June, 1979. The plaintiff BROWN was allegedly shot by officer PEREZ when he (the plaintiff) attempted to flee from officer PEREZ after the commission of a felony.
In his answer (D.E. 43), PEREZ asserts the defense of qualified immunity. The instant motion for summary judgment is based on the application of that defense to the uncontroverted facts enumerated below. In opposition, plaintiff BROWN argues that there exists a genuine issue of material fact, to wit: Whether officer PEREZ acted reasonably when he used deadly force to effectuate the arrest of a fleeing felon.2
The parties have stipulated to the following facts: On June 18, 1979, defendant LUIS PEREZ was a police officer employed by the City of Clewiston. On that date, PEREZ was in the vicinity of Concordia Avenue in the City of Clewiston and was observing an apartment located at 834 Concordia Avenue. Officer PEREZ was working within the course and scope of his employment at this time and during the course of the subsequent events.
As officer PEREZ watched, the plaintiff BROWN went to the back of the apartment at 834 Concordia Avenue, broke the glass in a window there, and crawled into the apartment. BROWN entered the apartment with the intent to steal a stereo and/or other property. Thereafter, BROWN exited the apartment and returned to a car which was parked nearby. Three (3) of his friends awaited him there.
Officer PEREZ approached the parked vehicle, announced that he was a police officer, and told BROWN that he was under arrest. At the time, Officer PEREZ knew who the plaintiff was, knew that the plaintiff was a juvenile (BROWN was fifteen (15) years of age in 1979) and knew the plaintiff's address. The plaintiff BROWN knew that PEREZ was a police officer and that he (PEREZ) was attempting to place the plaintiff under arrest.
After PEREZ told the plaintiff he was under arrest, BROWN attempted to escape arrest by fleeing. Officer PEREZ discharged his firearm at the plaintiff to prevent his escape.
The following facts, although not stipulated to, are uncontroverted: BROWN committed a felony, to wit: burglary. When Officer PEREZ discharged his firearm, he was acting pursuant to the Florida "Fleeing Felon Statute". BROWN was unarmed and not an immediate threat to officer PEREZ or any other person.
The plaintiff claims that Officer PEREZ deprived him of rights guaranteed to him by the Fourth Amendment proscription against unreasonable searches and seizures and due process rights guaranteed by the Fifth and Fourteenth Amendments. Officer PEREZ argues that he is entitled to prevail on plaintiff's claim based on the defense of qualified immunity. An arrest is a "seizure" within the proscription of the Fourth Amendment as it is applied to the states through the Fourteenth Amendment. The plaintiff has stated a claim against Officer Perez pursuant to 42 U.S.C. § 1983. We have jurisdiction of this cause pursuant to 28 U.S.C. § 1343 and will exercise our discretionary pendant jurisdiction over the state claims asserted in the complaint.
In order to prevail on the qualified immunity defense (described, infra), PEREZ must show that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R. Civ.Pr. 56; American Viking Contracters, Inc. v. Scribner Equipment Company, 745 F.2d 1365 (11th Cir.1984). If PEREZ sufficiently supports his factual and legal contentions in accordance with the standard outlined above, the burden shifts to the party opposing the motion for summary judgment — i.e., the plaintiff herein — who must come forward with significant probative evidence demonstrating that a triable issue of fact does exist, or showing that the movant is not entitled to judgment as a matter of law. American Viking, at 1369.
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court determined that government officials are entitled to a qualified immunity in actions at law for civil damages arising from the alleged deprivation of constitutional rights if the following criteria are met: (1) the official was performing a discretionary function within the course and scope of his/her employment; and (2) the official's conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818, 102 S.Ct. at 2738. As the Court pointed out, this is an objective standard; it is a "test that focuses on the objective legal reasonableness of an official's acts." Id. at 819, 102 S.Ct. at 2739. See, also, Acoff v. Abston, 762 F.2d 1543, 1549 (11th Cir.1985) ().3
In addition, the Supreme Court encouraged the practice of summary disposition of such suits. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Since an officer's subjective beliefs are irrelevant to the defense of qualified immunity, once it is established that the officer was performing a discretionary function within the course and scope of his employment, it is the function of the judge to determine whether the law was clearly established at the time the incident occurred. Id. The officer's defense may be rebutted, however, if the plaintiff can show that the officer acted in bad faith or with malice. See, Clark v. Beville, 730 F.2d 739, 740 (11th Cir.1984). Thus, in the case at bar, summary judgment should be granted in favor of PEREZ if PEREZ meets the criteria enumerated above. The plaintiff can only defeat summary judgment if he comes forward with significant probative evidence showing that PEREZ acted with bad faith or malice.
It is fairly well-settled that police officers are "government officials" and that they are entitled to utilize the defense of qualified immunity. See, Harlow, 457 U.S. at 819, n. 30, 102 S.Ct. at 2738 n. 30; Accord, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985). The parties have stipulated that PEREZ was acting within the course and scope of his employment when the incident occurred. It is axiomatic that the means used to effectuate an arrest are within the discretion of the police officer (at the very least, the plaintiff does not contend that Officer PEREZ was not performing a discretionary function at the time the shooting incident occurred). All other pertinent facts being uncontroverted (i.e., that the plaintiff was an unarmed fleeing felon and PEREZ shot him to prevent his escape), there exists no genuine issue of material fact which remains to be decided. The only issue remaining is one of law, to wit: Whether PEREZ violated clearly established statutory or constitutional law of which a reasonable person would have known in June, 1979 when he shot an unarmed fleeing felon to prevent that felon's escape from arrest.
In 1979, the Florida Statutes provided, in pertinent part, that a law enforcement officer was justified in the use of any force "necessarily committed in arresting felons fleeing from justice." Fla.Stat. § 776.05 (1979). This statute was a codification of the common-law rule that an officer could use deadly force to apprehend a fleeing felon. Prior to its codification by statute, Florida common-law clearly approved the use of force to effect the capture of a fleeing felon (regardless of the nature of the underlying felony), even to the extent of killing or wounding him. See, Gordon v. Alexander, 198 So.2d 325 (Fla. 1967); Miami v. Nelson, 186 So.2d 535 (Fla. 3d DCA 1966); and City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976). In each of these cases, the "necessary" requirement was applied to mean that force which was necessary to effect an immediate capture of the felon. Once the underlying facts are established, the "necessary" requirement is really an issue of law. In the case at bar, it is uncontroverted that BROWN was fleeing from PEREZ, who was unable to catch him (D.E. 102, pp. 19-21). PEREZ knew that after committing burglaries on other occasions (D.E.102, p. 7), BROWN had left the jurisdiction (D.E.102, p. 31). Thus, it was extremely likely that PEREZ would not find BROWN if he was not caught then.
This law was in effect in June, 1979 when the shooting incident between the parties to this case occurred. At the time, it was clearly established that a law enforcement officer...
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