EH v. City of Miramar

• Citation: 111 F.Supp.3d 1307
• Decision Date: 19 June 2015
• Docket Number: Case No. 13–60235–CIV.
• Parties: EH, a minor through his legal guardian, Shonteaka MOORE; and HH, a minor through his legal guardian, Cynthia Stimphil; Philocles Hilaire, as personal representative of the estate of Herson Hilaire and Hedson Hilaire; Philocles Hilaire, an individual and father of Herson Hilaire and Hedson Hilaire; and Marguerite W. Hilaire, an individual and mother of Herson Hilaire and Hedson Hilaire, Plaintiffs, v. CITY OF MIRAMAR, a municipality; Marc Moretti, Damaso Espiritusanto, Bosco Neuhaus, and Michael Bolduc, Defendants.
• Court: U.S. District Court — Southern District of Florida

111 F.Supp.3d 1307

EH, a minor through his legal guardian, Shonteaka MOORE; and HH, a minor through his legal guardian, Cynthia Stimphil; Philocles Hilaire, as personal representative of the estate of Herson Hilaire and Hedson Hilaire; Philocles Hilaire, an individual and father of Herson Hilaire and Hedson Hilaire; and Marguerite W. Hilaire, an individual and mother of Herson Hilaire and Hedson Hilaire, Plaintiffs,

v.CITY OF MIRAMAR, a municipality; Marc Moretti, Damaso Espiritusanto, Bosco Neuhaus, and Michael Bolduc, Defendants.

Case No. 13–60235–CIV.

United States District Court, S.D. Florida.

Signed June 19, 2015.

Greg McNeill Lauer, Christina Marie Currie, Lauer & Currie, P.A., Fort Lauderdale, FL, for Plaintiffs.

Justin Daniel Luger, John Joseph Quick, Wiess Serota Helfman Pastoriza Cole & Boniske P.L., Coral Gables, FL, Daniel Lawrence Abbott, Weiss Serota Helfman Cole Bierman & Popok, P.L., Ft. Lauderdale, FL, for Defendants.

ORDER

WILLIAM J. ZLOCH, District Judge.

THIS MATTER is before the Court upon the Report And Recommendation (DE 99), filed herein by United States Magistrate Judge Patrick M. Hunt, Defendants' Motion For Summary Judgment (DE 73), and Plaintiffs' Objections To Report And Recommendation As To Defendants' Motion For Summary Judgment (DE 103). The Court has conducted a de novo review of the entire record herein and is otherwise fully advised in the premises.

In his Report (DE 99), Magistrate Judge Patrick M. Hunt recommends that the Court grant Defendants' Motion For Summary Judgment (DE 73) as to all Defendants and that the state law wrongful death claim be dismissed. DE 99, p. 35. object to the findings in Magistrate Judge Hunt's Report (DE 99) because, according to Plaintiffs, the findings in said Report are the result of Magistrate Judge Hunt's failure to apply the appropriate summary judgment standard by improperly crediting Defendants' facts, while simultaneously dismissing the Plaintiffs' facts and any inferences properly drawn therefrom. DE 103, p. 5. Therefore, Plaintiffs maintain that said Report is based on a faulty foundation, leading to an incorrect result. However, the Court finds that Magistrate Judge Hunt properly evaluated and credited both the facts and the record evidence, in conformity with the appropriate summary judgment standard, and adopts the findings of Magistrate Judge Hunt in his Report and Recommendation (DE 99).

Contrary to the allegations made by Plaintiffs' Objections (DE 103), Magistrate Judge Hunt correctly articulates and applies the summary judgment standard in his Report and Recommendation. See DE 99, pp. 12–13. In addition to what was discussed in Magistrate Judge Hunt's Report (DE 99), this Court also notes that, "[b]y its very terms, [the summary judgement] standard provides that the 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, 247–8, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).

In determining whether a fact is material, "the substantive law will identify which facts are material ... [therefore, o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment [and] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In determining whether a factual dispute is genuine, the Court must determine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In performing this inquiry, "[i]f the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Id. at 249–50, 106 S.Ct. 2505. The following tenet guides this inquiry:

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 252, 106 S.Ct. 2505 (internal quotations omitted).

Thus, the summary judgment standard necessarily requires the court to "view the evidence presented through the prism of the substantive evidentiary burden." Anderson, 477 U.S. at 254, 106 S.Ct. 2505. In sum, the inquiry at hand "is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not." Id. (emphasis added). Therefore, the Court's determination hinges on whether the factual disputes alleged are both genuine and material.

In their Objections (DE 103), Plaintiffs' argue, without supporting case law, that:

The only way to properly analyze this case for qualified immunity purposes is to break it down into what it is: Three separate and distinct applications of deadly force by the four officers involved and with each application of deadly force being separated by time, physical distance and specific factual scenarios.

DE 103, p. 2. Notably, neither Plaintiffs' Response To Defendants' Motion For Summary Judgement (DE 78) nor their Objections (DE 103) cite any case law in support of this proposition.

To the contrary, there are several cases in this Circuit that support the proposition that the use of deadly force is reasonable until the threat of serious physical harm was eliminated and the threat was fully secured. See Clark v. City of Atlanta, 544 Fed.Appx. 848, 857 (11th Cir.2013) (granting summary judgment in favor of the officer because he "acted reasonably in continuing to shoot at [decedent] until the threat of serious physical harm was eliminated and [decedent] was fully secured"); see also Jean–Baptiste v. Gutierrez, 627 F.3d 816 (11th Cir.2010) ; Martinez v. Halabi, 2012 WL 222069, *5 (S.D.Fla. Jan. 25, 2012) ; Humphrey v. City of Headland, 2012 WL 2568206, *4 (M.D.Ala. July 2, 2012).

Plaintiffs contend that the following findings by Magistrate Judge Hunt are erroneous: (1) the events of the evening were fluid, (2) the responding officers did not know whether the Decedents were armed, (3) that there was no inherent contradiction between the statements of the Defendant officers and witness Dustin Nicol, and (4) Plaintiffs misstated certain facts. Each of these facts will be addressed in turn.

In his Report (DE 99), Magistrate Judge Hunt concluded that the "events of the evening were fluid. There were no temporal lapses or pauses." DE 99, p. 22. Plaintiffs argue that "[t]he term ‘temporal’ ... is problematic as it refers only to time" and that "[t]he reason why this shooting needs to be evaluated as three separate applications of deadly force is not simply of the time that elapsed between each application of deadly force but also the dramatic change in circumstances between [them]." DE 103, p. 7.

The Court finds that Plaintiffs' Objection to this factual finding is not well taken, as there is no case law or other authority supporting the proposition that applications of deadly force should be divided into stages. Further, Plaintiffs altogether fail to support the assertion that the threat of serious physical harm was eliminated or that the existing threat was fully secured. In any event, whether the events were fluid or instead divided into stages is not material to the substantive issue of qualified immunity in the above-styled cause.

Second, Plaintiffs disagree with Magistrate Judge Hunt's conclusion in Footnote 9 of his Report (DE 99) that Defendants were not aware that either Decedent Herson Hilaire or Decedent Hedson Hilaire was unarmed. DE 103, p. 7 Plaintiffs argue that this factual finding was flawed, because "[n]owhere, in any statement, of any Defendant, do they indicate that they even for a second thought that Herson or Hedson may have been in possession of a weapon." DE 103, p. 7.

An examination of Plaintiffs' Statement of Material Facts (DE 103–1) and the underlying record directly contradicts Plaintiffs' characterization. Paragraph 98 of Plaintiffs' Statement of Material Facts (DE 103–1) states, "[l]ater when the car door opens [Officer] Espiritusanto opens fire again on the driver because he is in fear because he feels that Herson may be armed." DE 103–1, ¶ 98 (emphasis added). In his sworn statement, Officer Espiritusanto explained, "So now I have-now we have him running that way and I'm like in fear you know does this-is this guy armed and what is he going to do so I saw that as another threat and reengaged him again...." DE 79–12, p. 16 (emphasis added). This sentiment is also consistent with Officer Bolduc's statement,

There was some bushes here for some kind of concealment. I ended up, remember seeing the fire hydrant, and I wanted to use it for cover ‘cause I wasn't sure if, you know, somebody's gonna come out shooting. Who knows?

You know, they just, you know, tried to run over, you know, one of our guys and kill one of our guys, so we didn't know what we were gonna be up against.

DE 103–7, p. 7 (emphasis added). Plaintiffs' contention with respect to this issue is clearly erroneous and wholly unsupported by the record.

Third, Plaintiffs argue that Magistrate Judge Hunt improperly weighed the evidence when he found that there is "no inherent contradiction between the testimony of the officers who were merely feet away from the vehicle (the engine was revving) and Mr. Nicol's observations from a more remote location where he could not even see the vehicle (he did not hear the vehicle running)." DE 103, p. 10.

Again, the Court finds that Plaintiffs' Objection to this factual finding is not well taken, as...