Ensley v. Soper, 96-8996

• Decision Date: 11 June 1998
• Docket Number: No. 96-8996,96-8996
• Parties: 11 Fla. L. Weekly Fed. C 1473 Ralph W. ENSLEY, Plaintiff-Counter-Defendant-Appellee, C. Wesley Ensley, Plaintiff-Appellee, v. Larry SOPER, Sergeant, Defendant, Mike Johnston, Officer, Defendant-Appellant, James Gilleland, Officer of the City of Canton, Georgia Police Department, in their official and individual capacities, Defendant, Danny Doyle, Counter-Claimant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1402

142 F.3d 1402

11 Fla. L. Weekly Fed. C 1473

Ralph W. ENSLEY, Plaintiff-Counter-Defendant-Appellee C. Wesley Ensley, Plaintiff-Appellee, v. Larry SOPER, Sergeant, Defendant Mike Johnston, Officer, Defendant-Appellant James Gilleland, Officer of the City of Canton, Georgia Police Department, in their official and individual capacities, Defendant Danny Doyle, Counter-Claimant.

No. 96-8996.

United States Court of Appeals, Eleventh Circuit.

June 11, 1998.

Richard A. Carothers, Thomas M. Mitchell, Duluth, GA, for M. Johnston.

David G. Archer, M. Faye McCord, Cartersville, GA, for Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, BIRCH and MARCUS ^*, Circuit Judges.

BIRCH, Circuit Judge:

In this interlocutory appeal, we determine whether the defendant police officer, Mike Johnston, is entitled to qualified immunity regarding claims that he failed to (1) warn the plaintiffs that they were entering a crime scene and (2) intervene when his fellow officers used excessive force against the plaintiffs. In denying summary judgment to Johnston, the district court stated only that a reasonable juror could conclude from the evidence that his fellow officers had used excessive force. Johnston argues that, even assuming the plaintiffs' allegations are true, he did not have a clearly established duty to warn or assist them. We reverse.

I. BACKGROUND

For the purposes of this appeal, we view the facts in the light most favorable to the non-moving parties, plaintiffs Ralph and Wesley Ensley. ¹ See Riley v. Newton, 94 F.3d 632, 634 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 955, 136 L.Ed.2d 842 (1997).

On the night of May 15, 1993, two undercover officers of the Cherokee County, Georgia police department conducted an undercover operation against a suspected drug dealer. After luring their suspect to the parking lot of a convenience store just outside the city of Canton, Georgia, the two plain-clothes officers attempted to arrest him. During the course of this arrest, the suspect's attempt to flee led both to a crash between his and the officers' cars and to the accidental and harmless discharge of one officer's firearm. As a result of these events, a crowd of store customers and neighbors began to gather near the crime scene, and an additional six Cherokee County officers, two City of Canton officers, and a Georgia State Trooper soon arrived at the scene. Of the total of eleven officers at the parking lot following the arrest, six wore police uniforms; five marked police cars were also present.

One of the Canton officers who came to the parking lot was Johnston, who was in uniform. Soon after Johnston's arrival at the lot, firecrackers apparently went off in the vicinity of a neighboring furniture store. After hearing these noises, Johnston returned to his marked patrol car and drove to the furniture store's parking area to investigate. Unbeknownst to Johnston at that time, the furniture store was owned by Ralph; in fact, Ralph owned both the furniture store to the left of the convenience store and the video store to the right of the convenience store. At the time of the drug arrest, Ralph and his brother were in the furniture store, while Ralph's wife was in the video store. Apparently, both Ralph and Wesley had recently been engaged in the consumption of alcohol. When Ralph received a telephone call from a neighbor suggesting that a robbery was taking place in his video store (with his wife as a presumed victim), Ralph picked up an iron bar and exited the furniture store with Wesley.

Upon his arrival at the furniture store, Johnston encountered Ralph and Wesley and asked them whether they had heard firecrackers. Although the substance of the Ensleys' response is in dispute, Ralph asserts that he told Johnston that he had heard gunshots, that he believed a robbery was in progress at his nearby video store, and that they needed Johnston's assistance. Ralph and Wesley then ran across the parking lot toward the convenience and video stores. The Ensleys maintain that Johnston did not warn them that there were police officers or a crime scene in the convenience store lot, but they do not claim that Johnston gave them any affirmative assurance that he would assist them; the Ensleys apparently assumed that Johnston was following them to help foil the supposed robbery.

As the Ensleys ran across the parking lot, Johnston drove his patrol car back to the convenience store lot. At that time, the lot was apparently unlit. According to Ralph, none of the officers in the lot made any attempt to identify themselves or to warn him of any danger as he approached the convenience store. Ralph and Wesley, however, concede that, as they neared the crime scene, they saw that a man had been handcuffed and was sitting by a wall outside the convenience store. Ralph and Wesley also apparently concede that they did not attempt to ascertain from any of the various people present whether a robbery was in fact occurring or their assistance was in any way required.

Upon entering the crime scene, Ralph soon became involved in an altercation with a plain-clothes officer, Danny Doyle. Although Doyle was wearing a badge and other police accouterments (such as handcuffs at his waist), Ralph contends that he did not realize that the man who was restraining him was a law enforcement officer. When Ralph subsequently resisted Doyle's attempt to arrest him, several other officers at the scene, including at least one uniformed officer, joined in handcuffing and "hog-tying" Ralph. During the course of this arrest, Ralph hit Doyle with the iron bar (albeit allegedly unintentionally), lacerating Doyle's head and chipping his tooth. During and shortly after this arrest, several of the officers allegedly kicked and beat Ralph. As all of the parties agree, Johnston did not participate in any way in Ralph's arrest or in any subsequent alleged abuse.

While several officers subdued Ralph, Johnston and two other officers were busy arresting Wesley. As Wesley concedes, he attempted to come to Ralph's assistance when Ralph became entangled with Doyle. When Wesley grabbed Doyle's metal flashlight, Deputy Diane Bagget, soon joined by another officer and Johnston, restrained and arrested Wesley. Johnston then placed Wesley in Johnston's patrol car.

Although the Cherokee officers charged Ralph and Wesley with several crimes, a jury acquitted both Ensleys of all charges stemming from the incident. On May 5, 1995, the Ensleys then sued several of the Cherokee County and Canton officers in their official and individual capacities for, inter alia, false arrest and use of excessive force (i.e., assault and battery), in violation of their rights under the Fourth and Fourteenth Amendments (enforced through 42 U.S.C. § 1983). ² On May 7, 1995, the Cherokee defendants moved for summary judgment, as did Johnston and a fellow Canton officer on May 9, 1996. On May 31, 1996, the Ensleys dismissed two defendants in both their official and individual capacities and Johnston in his official capacity only.

On July 31, 1996, the district court granted in part and denied in part the various motions for summary judgment. In its order, the district court ruled that, even viewing the evidence in the light most favorable to the Ensleys, the officers had probable cause to arrest Ralph and Wesley and, therefore, the officers were entitled to qualified immunity for the false arrest claims. The district court, however, denied Johnston's motion for summary judgment on Ensley's excessive force claim. In explanation, the court stated only that:

A police officer's use of force must be examined in light of the facts of each individual case. Popham v. Kennesaw, 820 F.2d 1570, 1576 (11th Cir.1987). Resolving the disputed factual issues in plaintiffs' favor, a reasonable person could conclude that defendants used excessive force. Therefore, Officer Johnston is not entitled qualified immunity on plaintiffs' claims of excessive force.

R9-69 at 12-13. Following the court's order, Johnston filed this interlocutory appeal.

II. DISCUSSION

On appeal, Johnston renews his contention that he is entitled to qualified immunity. ³ The doctrine of qualified immunity "protects government officials performing discretionary functions from civil trials ... and from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known." Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) (en banc ) (internal quotation marks omitted). Any case law that a plaintiff relies upon to show that a government official has violated a clearly established right must pre-date the officer's alleged improper conduct, involve materially similar facts, and "truly compel" the conclusion that the plaintiff had a right under federal law. See id. at 1150. Moreover, "[o]bjective legal reasonableness is the touchstone"; a court must examine whether a government officer has acted in an objectively reasonable fashion under the circumstances, without any consideration of the government actor's subjective intent. Id.

The Ensleys contend that Johnston violated two of their clearly established rights. First, they maintain that Johnston trammeled upon their right to be warned that they were about to enter a dangerous crime scene. Second, they argue that Johnston violated Ralph's right to expect Johnston's intervention when Ralph suffered from police brutality in Johnston's presence. We review the district court's denial of a defendant's motion for summary judgment on the basis of qualified immunity de novo. See Dolihite v. Maughon By and Through Videon, 74 F.3d 1027, 1040 (11th Cir.1996).

A. DUTY TO WARN

The federal Constitution does not oblige any state or local government to ensure the safety of its citizens. See, e.g., DeShaney v. Winnebago County Dept. Soc. Serv., 489...