Brown v. City of Clewiston, No. 87-5503

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before HATCHETT and EDMONDSON; EDMONDSON; HATCHETT
• Citation: 848 F.2d 1534
• Parties: Joseph Todd Eric BROWN, Plaintiff-Appellant, v. CITY OF CLEWISTON and Luis Perez, Defendants-Appellees.
• Docket Number: No. 87-5503
• Decision Date: 13 July 1988

Page 1534

848 F.2d 1534 Joseph Todd Eric BROWN, Plaintiff-Appellant,
v.
CITY OF CLEWISTON and Luis Perez, Defendants-Appellees. No. 87-5503. United States Court of Appeals,
Eleventh Circuit. July 13, 1988.

Page 1535

Michael A. Nugent, Cone, Wagner, Nugent, Johnson, Roth & Romano, P.A., West Palm Beach, Fla., for plaintiff-appellant.

Ralph B. Paxton, Paxton, Crow, Bragg & Austin, P.A., Michele I. Nelson, West Palm Beach, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY ^*, Chief Circuit Judge.

EDMONDSON, Circuit Judge:

This appeal challenges the district court's grant of summary judgment in favor of defendant-appellee, the City of Clewiston, Florida ["City" or "City of Clewiston"]. ¹ Plaintiff-appellant Joseph Todd Eric Brown sued the City of Clewiston after one of its police officers shot Brown as he attempted to avoid arrest. Brown contends that City police authorized the use of deadly force in

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violation of his constitutional rights, 42 U.S.C. sec. 1983, and of state law. The district court granted summary judgment against Brown on all of his claims; we affirm.

BACKGROUND:

On June 18, 1979, Officer Luis Perez, an employee of the City, received information that led him to watch an unoccupied apartment. He saw Brown break a window and crawl into the apartment to steal a stereo and other property. Thereafter, Brown left the apartment and returned to a car that was parked nearby. When Officer Perez approached and attempted to arrest Brown, Brown fled; Officer Perez shot Brown in the leg to prevent his escape. ² Apparently, Brown was unarmed and presented no threat of death or bodily harm to Officer Perez or others. See generally Brown v. City of Clewiston, 644 F.Supp. 1407, 1409-10 (S.D.Fla.1986) (describing the undisputed facts surrounding the shooting incident). Also, "Perez knew who the plaintiff [Brown] was, knew that he was a juvenile and knew his address." Id. at 1410.

At the time of the shooting incident, a Florida statute provided "justification" for a police officer to use "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." Fla.Stat.Ann. sec. 776.05 (West 1976). Florida law thus embodied the common-law rule on the use of deadly force. See Tennessee v. Garner, 471 U.S. 1, 16 n. 14, 105 S.Ct. 1694, 1703 n. 14, 85 L.Ed.2d 1 (1985) (listing Florida's statute as a codification of the "common-law rule"); see also City of St. Petersburg v. Reed, 330 So.2d 256, 257 (Fla.Dist.Ct.App.) (common-law rule in Florida "has ... been codified in Fla.Stat. sec. 776.05"), cert. denied, 341 So.2d 292 (Fla.1976). Only recently has Florida amended section 776.05. ³

By 1978, the City had adopted its own regulations on the use of deadly force. Then-Chief of Police Wilbur Miller had developed a police manual, which in Section 3.43 provided as follows:

Firearms and Weapons:

Authorized Uses: A member shall not draw or display his firearm except for a legal use or official inspection. A Member should never draw his firearm unless he plans to and is ready to use it. When it is necessary to use a firearm, it shall be fired for effect, not to wound or warn. A member may discharge his firearm in connection with the performance of his official police duty, for the following reasons or circumstances.

....

c. To defend himself from death or serious injury.

d. To defend another person, unlawfully attacked, from death or serious injury when other means have failed.

e. To apprehend--when all other means have failed--a fleeing felon whom the officer reasonably believes has (1) committed a violent crime to the person of another or (2) a crime

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against property that clearly demonstrates a wanton and reckless disregard for human life.

....

(emphasis in original). The last paragraph of this section stated that a police officer "shall exert no more force than is reasonably necessary to apprehend the fleeing felon, and shall use deadly force only as a last resort and only in those instances described under 'Authorized Use' above." (emphasis in original).

Police department policy required that each officer sign a copy of the department's rules, thereby acknowledging that "he had received the manual and agreed to read it and abide by the rules of the manual." Deposition of Chief Wilbur Miller, at 10. Chief Miller repeatedly instructed his officers to read and to comply with the manual. Id. at 8, 10, 16, 23, & 36-37. If an officer violated any regulations, the department would check into the matter and, if warranted, suspend or terminate the officer. Id. at 35-36.

After the shooting incident in 1979, Brown filed suit against the City. Brown alleged that the City's "policies and procedures" on the use of deadly force deprived him of his constitutional rights, 42 U.S.C. sec. 1983. He also brought pendent state law claims, arguing that the City "negligently and carelessly failed to instruct or supervise" Officer Perez and that the City should be held liable on grounds of negligence and assault and battery. The district court granted the City's summary judgment motion; this appeal followed.

OUR STANDARD OF REVIEW

Preliminarily, we discuss the appropriate standard of review. "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). As the Supreme Court noted in Anderson, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.... If the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Id. at 2511 (emphasis added). Put differently, when the defendant moves for summary judgment,

The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict--"whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed."

Id. at 2512 (emphasis added) (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1872)).

NO UNCONSTITUTIONAL "POLICY" FOR 42 U.S.C. Sec. 1983

Brown seeks to impose municipal liability on the City of Clewiston for its allegedly unconstitutional "policies and procedures" regarding the use of deadly force. He contends that material fact disputes preclude the grant of summary judgment for the City. After briefly discussing the nature of the constitutional "injury" alleged in this case, we focus on the chief issue before us today--namely, whether Brown's "injury" resulted from an official policy, "statute, ordinance, regulation, custom, or usage" of the City. See 42 U.S.C. sec. 1983; Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978).

Brown argues that Officer Perez improperly used deadly force when he shot

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Brown, inflicting an "injury" actionable under 42 U.S.C. sec. 1983. His argument depends upon Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which addressed "the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon." Id. at 3, 105 S.Ct. at 1697. The Garner Court "conclude[d] that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. (issue decided in terms of the Fourth Amendment). See also id. at 11, 105 S.Ct. at 1701 ("the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable."). ⁴

We assume arguendo that Officer Perez shot Brown under circumstances that violated the Garner Court's Fourth Amendment standard on the use of deadly force. It is nonetheless axiomatic that "a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under sec. 1983 on a respondeat superior theory." Monell, 436 U.S. at 691, 98 S.Ct. at 2036. To impose liability on the City of Clewiston for the acts of Officer Perez, Brown must show that the City "officially sanctioned or ordered" the shooting. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986); see also Monell, 436 U.S. at 691, 98 S.Ct. at 2036 ("custom" must be "so permanent and well settled" as to have "the force of law.").

Recently, the Supreme Court in Pembaur reaffirmed that "tortious conduct, to be the basis for municipal liability under sec. 1983, must be pursuant to a municipality's 'official policy'." Pembaur, 106 S.Ct. at 1298. Put differently, "recovery from a municipality is limited to acts that are, properly speaking, acts 'of the municipality'--that is, acts which the...