Dixon v. Ga. Dep't of Pub. Safety
| Decision Date | 18 April 2018 |
| Docket Number | 2:14-cv-47 |
| Parties | SUE BRANNEN DIXON, JAMES M. DIXON, JR., Plaintiffs, v. GEORGIA DEPARTMENT OF PUBLIC SAFETY; ALBERT HARVEY WILLIFORD, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
This Matter comes before the Court on Defendant Albert Williford's and Defendant Georgia Department of Public Safety's ("DPS") Motion for Summary Judgment (Dkt. No. 39). These Motions have been fully briefed and are now ripe for review. For the following reasons, Williford's Motion is GRANTED, and DPS's Motion is REMANDED to the state court along with all remaining state law claims.
BACKGROUND
On February 19, 2012, local law enforcement in Appling County requested the assistance of the Georgia State Patrol's State Special Weapons and Tactics ("SWAT") Team in dealing with a barricaded gunman at the gunman's home. Dkt. No. 39-2/46-1 ¶ 41 (1); Dkt. No. 39-3, Ex. 13 at 2. Cpl. Williford was one of the SWAT officers mobilized to respond to the barricaded gunman situation. SUMF ¶ 43; Dkt. No. 39-3, p. 24. The callout location was the house of James Dixon,2 located in a rural area at the back of a wide open field. SUMF ¶ 44; Dkt. No. 39-3, p. 55, Ex. P4. Williford arrived at the callout location at approximately 7:30 a.m. SUMF ¶ 45; Dkt. No. 39-3, p. 28. He knew that an Appling County judge had issued an aggravated assault arrest warrant for Dixon earlier that morning and that he (Williford) was called to assist in effectuating that arrest. SUMF ¶¶ 46, 42; Dkt. No. 39-3, p. 106; Dkt. No. 6-1, p. 2. Williford also knew that Dixon had prior military combat experience. SUMF ¶ 49; Dkt. No. 39-3, p. 108. It was Williford's understanding that earlier that morning, Dixon had discharged a firearm into a neighbor's home, taken family members hostage, and assaulted a family member with a knife. SUMF ¶ 47; Dkt. No. 39-3, pp. 106, 108.
When Williford arrived, Sergeant Shackelford advised him to set up a perimeter and deploy as a sniper. SUMF ¶ 50; Dkt. No. 39-3, p. 46. Williford had a .308 rifle with hollowpoint ammunition. SUMF ¶ 54; Dkt. No. 39-3, p. 54. He deployed to alocation on the left side of Dixon's house (if facing the front of the house), approximately 106 yards from the house, and placed himself on the ground in an attempt to camouflage himself. SUMF ¶¶ 51, 53; Dkt. No. 39-3, pp. 50-54.
To contain Dixon, Williford tried to work with the other SWAT team members according to their regular practice to establish inner and outer perimeters around Dixon's house. SUMF ¶ 54; Dkt. No. 39-3, p. 64, Ex. P14. But SWAT did not have sufficient manpower to complete the inner or the outer perimeter. SUMF ¶¶ 57; Dkt. No. 39-3, pp. 96-97. This left an opening around the rear of the house, leaving Williford to wonder what means of escape in that direction Dixon might have. SUMF ¶ 59; Dkt. No. 39-3, p. 97. Williford testified that he was concerned about Dixon escaping from the rear of the house through the woods. SUMF ¶ 60; Dkt. No. 39-3, p. 98, Ex. 4.
When Williford arrived, Dixon was inside his house. The events are depicted in a video that was provided by Defendants in support of their motion for summary judgment. While Dixon was inside, an armored vehicle called a Bearcat began to deploy to the right side of the house to assist troopers in setting up the perimeter. SUMF ¶ 62; Dkt. No. 39-3, pp. 70-71, Ex. 11, 12, 14. Williford was informed that "James [Dixon] had stated that he was coming out to fight or he was coming out with his bootson, or it wasn't to surrender, something to that degree." SUMF ¶ 61; Dkt. No. 39-3, pp. 128-29.
Some time after the sun rose, Dixon exited the house and began to move around the area near his truck. SUMF ¶ 65; Dkt. No. 12-1 beginning at ~1:58:41. He was carrying a long gun and wearing a bullet proof vest and two bandoliers of ammunition strapped across his chest. SUMF ¶ 66; Dkt. No. 12-1 at ~1:58:41; Dkt. No. 39-3 at 2; Dkt. No. 39-6. Williford did not know whether Dixon's gun was loaded or whether the safety was on. SUMF ¶ 68; Dkt. No. 39-3, pp. 81, 117-18.
Trooper Lamb was in the Bearcat. SUMF ¶ 63; Dkt. No. 39-3, p. 70. Using a public address system, Lamb repeatedly instructed Dixon to drop his weapon.3 SUMF ¶ 69; Dkt. No. 39-3, p. 125-26. Dixon failed to comply. SUMF ¶ 70; Dkt. No. 39-3, pp. 119-20; Dkt. No. 12-1 at ~1:58:41. Dixon held the gun such that it was pointed up vertically. SUMF ¶ 71; Dkt. No. 12-1, pp. 117-18.
Williford testified that he was concerned that Dixon might be trying to leave in his truck and endanger the public. SUMF ¶ 73; Dkt. No. 39-3, p. 109. To prevent such an occurrence, he fired his first shot. SUMF ¶ 74; Dkt. No. 39-3, p. 109. Thevideo evidence shows that at the time of the first shot, Dixon was standing outside of his truck with both feet on the ground. Plaintiffs' Additional Facts to which Defendant agrees ("PAF") ¶ 12; Dkt. No. 12-1. He reached into the truck, turned off the ignition, and threw the keys into the yard. Id. Williford testified that he could not tell what Dixon was doing when he reached inside the truck. Dkt. No. 39-3, p. 118.
Within a minute of firing the first shot and concerned for the safety of the nearby officers, Williford shot and killed Dixon at 8:42 a.m. SUMF ¶ 82; Dkt. No. 39-3, p. 109; Dkt. No. 1-1 at 7 ¶ 35, and at 37 ¶ 35; PAF ¶ 1. He testified that he did so because Dixon had "put himself in a position to shoot at officers" and wanted to deescalate the situation before it got worse because of Dixon's proximity to the sheriff's deputies. PAF ¶¶ 9, 10; Dkt. No. 39-3, pp. 24, 91-94. Williford also testified that he believed Dixon looked in Williford's direction after the first shot was fired. Id. p. 53.
When Williford fired the fatal shot, three deputies standing near the Bearcat were within range of Dixon's gun, and Williford did not know whether they were wearing bullet proof vests. SUMF ¶¶ 77-78; Dkt. No. 39-3, p. 80, Ex. P14. Williford also testified that he believed himself to be within range of Dixon's gun, and he was not wearing a bullet proof vest. SUMF ¶ 79, 81; Dkt. No. 39-3, pp. 85, 68.
LEGAL STANDARD
Summary judgment is required where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.
The nonmovant may satisfy this burden in one of two ways. First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more "than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R. Civ. P. 56(e)).
In a use-of-force case, the facts must be taken in the light most favorable to the plaintiff, but the determination of reasonableness must be made from the perspective of the officer. Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005). "At summary judgment, we cannot simply accept the officer's subjective version of events, but rather must reconstruct the event in the light most favorable to the non-moving party and determine whether the officer's use of force was excessive underthose circumstances." Stephens v. DeGiovanni, 852 F.3d 1298, 1315 (11th Cir. 2017).
When considering the record at summary judgment, "'the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (quoting Tolan v. Cotton, 572 U.S. ___, 134 S. Ct. 1861, 1863 (2014)). But in cases with a video in evidence, the Court "'view[s] the facts in the light depicted by the videotape.'" Shaw, 884 F.3d at 1098 (quoting Scott v. Harris, 550 U.S. 372, 380-81 (2007)).
DISCUSSION
Plaintiff has asserted a 18 U.S.C. § 1983 claim against Defendant Williford based on the officer's use of excessive force. Such a claim requires the plaintiff to show that he was deprived of a civil right by a person acting under color of state law. DeGiovanni, 852 F.3d at 1314. The Supreme Court has held that all claims of excessive force shall be examined under the Fourth Amendment and its reasonableness standard. Tennessee v....
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