Carr v. Tatangelo
| Decision Date | 23 July 2003 |
| Docket Number | No. 01-14621.,01-14621. |
| Citation | 338 F.3d 1259 |
| Parties | Romeo CARR, Cedrick Wymbs, Plaintiffs-Appellants, v. Joseph TATANGELO, in his individual capacity, Anthony Fortson, in his individual capacity, Damien Mercer, in his individual capacity, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Samuel Lydell Starks, Edward T.M. Garland, Garland, Samuel & Loeb, P.C., Atlanta, GA, for Plaintiffs-Appellants.
Alan J. Gibson, Joseph C. Parker, Downey & Cleveland, LLP, William Casey, Lisa K. Whitfield, Marietta, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before BIRCH and DUBINA, Circuit Judges, and KATZ*, District Judge.
In this appeal, we determine whether police officers are entitled to qualified immunity when an individual was shot in the course of surveillance. The district court accorded the officers qualified immunity. We affirm.
In the early morning hours of Sunday, October 24, 1999, in Monroe, Georgia, defendants-appellees, Officers Joseph Tatangelo, Anthony Fortson, and Damien Mercer, were pursuing an individual who had fled during an investigatory stop that involved plaintiffs-appellants Romeo Carr and Cedrick Wymbs.1 The officers decided to patrol the New Lacy Street area of Monroe, a high-crime area known for drug trafficking, to look for the individual who had fled as well as to watch for drug activity.2 While the officers were observing a pay telephone and the street for evidence of drug activity, visibly intoxicated Harold Henderson appeared, and Officer Mercer asked him what he was doing in the area at that time. Henderson, who said that he was going to get drugs for others at Carr's house, gave his name as Harold Wade and consented to a pat-down search. In Henderson's wallet, Officer Mercer found Henderson's parole identification card, which revealed that Henderson had given the officers an incorrect name and birth date. The officers also called into dispatch to see if Henderson had any outstanding warrants.
To avoid going to jail, Henderson proposed a "deal" to the officers: in exchange for letting him go, Henderson volunteered to go to Carr's house and have somebody come out with drugs for the officers to arrest.3 Dep. of Damien Mercer at 50-51. The officers agreed and let Henderson walk to Carr's house, although Officer Mercer kept his wallet. After Henderson had departed from the presence of the officers, they learned that there were three outstanding warrants for his arrest, including theft by taking and parole violation by escape. Dep. of Anthony Fortson at 288; Mercer Dep. at 58. At that point, the objective of the officers' surveillance changed, and they went to Carr's house to watch for Henderson to emerge so that they could apprehend and arrest him.4 The officers never saw Henderson again.
The officers positioned themselves behind trees and bushes near Carr's house to give them a view of the house without being seen. Officer Tatangelo was across the street from Carr's house in an area where there were bushes and shrubs; Officer Fortson was on the same side of the street as Officer Tatangelo, but farther away from the house; and Officer Mercer was on the side of Carr's house lying on the ground in some bushes. As the officers watched, a car with three or four women drove up in front of Carr's house, and the horn sounded. Carr went out to the car and conversed with the women from the passenger's side.
As Carr walked out to the vehicle and Wymbs walked outside and down the street to use the pay telephone, Henderson entered the house. As he returned from the pay telephone and walked toward Carr's house, Wymbs noticed movement in the bushes across the street, which he believed to be a person. When he reached the car where Carr was talking to the women, Wymbs asked Carr to come to the rear of the vehicle, told Carr of his concern, asked him to come and look with him, and threw a rock into the bushes where he had detected movement "[t]o see whether it was a real person." Dep. of Cedrick Wymbs at 95; Dep. of Romeo Carr at 71. After throwing his rock, Wymbs asked: "[W]ho is that over there?" Wymbs Dep. at 100. He then called: "Reggie, Reggie."5 Carr Dep. at 72; Wymbs Dep. at 100, 157. Noticing no movement after Wymbs had thrown his rock and also thinking that the hidden individual might be Williams, Carr threw a rock hard and had his hand raised to throw another rock when he was shot.6
Wymbs testified that, when he walked back from the pay telephone and threw rocks into the bushes, his sunglasses were on top of his head. Wymbs Dep. at 101-02. After throwing rocks, Wymbs "was folding [his sunglasses] up and putting them in [his] pocket," and Carr "was about to throw his [rock], [when the police officers] started shooting." Id. at 102. Carr has suggested that Wymbs's folding his sunglasses was the "click-clack noise" that the officers heard that caused them to start shooting. Id. at 122; Carr Dep. at 86. Carr testified that the noise of Wymbs's removing his glasses and placing them in his pocket had caused him to think that Wymbs "had shot [Carr] at first." Carr Dep. at 86.
The police officers related the incident as they perceived it from their hidden locations. Officer Fortson testified that Officer Mercer communicated over the police radio that Carr and Wymbs knew that the officers were in the bushes. Fortson Dep. at 310. Carr and Wymbs walked across the street and were pointing and looking into the bushes. Officer Fortson testified that one asked: "[I]s that the `po-po'?" Id. at 324, 335. The other responded: "[T]hat's not the `po-po.'" Id. Immediately thereafter, Officer Fortson "heard someone racking a round,"7 id. at 344, 347, which caused him to draw his weapon, although he did not fire because there was no target; he waited until he "actually perceived a threat," id. at 357. Officer Tatangelo then screamed "`[P]olice,'" id. at 336, 361, whereupon Officer Fortson could see Carr and Wymbs pointing a weapon at Officer Tatangelo, id. at 358, 361. Officer Fortson verified: "I'm certain that one of them pointed a weapon at Officer Tatangelo."8 Id. at 362. Officer Tatangelo testified that, when the gun was pointed at him, it "scared the hell out of me." Dep. of Joseph Tatangelo at 226. Then Officer Tatangelo "heard the rack of the gun [Carr or Wymbs] was holding," id. at 231, and he saw "what [he] believed to be a small portion of the barrel" of a semi-automatic weapon, id. at 232.9
Officer Fortson testified that he was the first to fire his weapon because Carr and Wymbs "pointed a weapon at Officer Tatangelo," Fortson Dep. at 364, and he "was protecting a third party," id. at 365. Officer Fortson fired only once because he saw the muzzle of Officer Tatangelo's gun, knew that he was moving toward Officer Fortson, and he did not want him to be in his line of fire. Officer Tatangelo testified that, following Officer Fortson's one shot, he fired his gun "eight" times and that he was shooting to kill. Tatangelo Dep. at 237. He believed that Carr had shot at him, and he shot so many times "[t]o eliminate the threat."10 Id. at 243.
Like Officer Tatangelo, Officer Fortson testified that he believed that his life was in danger when he heard the chambering of a bullet, that he "thought [Carr and Wymbs] were going to shoot Officer Tatangelo," Fortson Dep. at 368-69, and believed that, if they would "shoot him," then they would shoot Officer Fortson also, id. at 369. When Officer Fortson shot his gun, he aimed at center mass consistent with his training. Although Officer Fortson testified that "I'm the one who hit Romeo Carr," id. at 371, he also stated that, at the time, "I d[id]n't know whether I hit him or not," id. Moreover, Carr and Wymbs "took off running towards the house roughly almost instantaneously after the first shot." Id. at 374.
After Officers Tatangelo and Fortson had ascertained that they were not wounded, and Officer Mercer had run across the street to join them, all the officers ran back to their cars following the shooting to await backup that they had summoned. Officer Fortson testified that they did not know "how far away backup was" and that they "didn't want to be in a hostile area," which did not "make good common sense." Id. at 394. Consequently, the officers ran back to their cars in a more secure area rather than pursuing Carr and Wymbs.11 Frightened by his first experience of being close to gunfire in the line of duty, Officer Mercer radioed that shots had been fired, and, in addition to regular police backup, he "called for the National Guard," Mercer Dep. at 90, and a helicopter to search the woods with light, id. at 96. No gun that Carr or Wymbs may have had was located outside or inside Carr's house, and they denied having a gun.12
When the shooting began, Carr "took off running" and did not realize that he had been shot until he was inside his house.13 Carr Dep. at 76. Moreover, Carr outran Wymbs, who had not been shot, was the first back at his house, and dove in the front door. Id. at 77. He lay on the floor in the front hallway until the paramedics arrived.
After the shooting stopped, approximately twenty people came out into the street, and they were angry about the shooting. Wymbs and Carr's brother ran outside, stopped a county police car that was driving by, and informed that Carr had been shot. The county police called for backup and an ambulance. Wymbs testified that, from the end of the shooting until the county police were notified, was "less than five minutes." Wymbs Dep. at 120. The Monroe City Police arrived in "less than two minutes" and secured the scene. Id. at 121. Then, the ambulance arrived and took Carr to the hospital for medical assistance.
Carr and Wymbs filed a 42 U.S.C. § 1983 action in the Middle District of Georgia against Officers...
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