Estate of Breedlove v. Leone, Case No: 6:11-cv-2027-Orl-31TBS
| Decision Date | 19 April 2013 |
| Docket Number | Case No: 6:11-cv-2027-Orl-31TBS |
| Parties | ESTATE OF TOREY ADRELL BREEDLOVE, Plaintiff, v. JOHN LEONE, JASON POPOVICH, TROY TIEGS, RANDALL DEAN ROOT, RICHARD SCHMELTZER, JASON GORBERG, RAFAEL CRUZ, PAUL VOLKERSON, HECTOR CARTEGENA, TONY RODRIGUEZ, DENNIS ELA, JERRY DEMINGS and MICHAEL DAVIS, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on three Motions for Summary Judgment. One filed by Defendants John Leone, Jason Popovich, Troy Tiegs, Randall Dean Root, Richard Schmeltzer, Jason Gorberg, Rafael Cruz, Paul Volkerson, Hector Cartegena, and Tony Rodriguez (Doc. 83); one filed by Defendant Jerry Demings, in his official capacity as Sheriff of Orange County, (Doc. 84); and one filed by Defendants Michael Davis and Dennis Ela (Doc. 92). Plaintiff, Estate of Torey Adrell Breedlove, has filed three responses (Docs. 121, 122, and 123) and Defendants filed three replies (Docs. 124, 125, and 126).
On January 5, 2010, Torey Adrell Breedlove ("Breedlove") died in a hail of gunfire at the hands of ten deputies of the Orange County Sheriff's Office ("OCSO") who were attempting toarrest him for vehicle theft. Breedlove's estate, represented by Tiffany Breedlove, initiated this excessive force case on December 21, 2011. The operative Second Amended Complaint asserts two counts for violation of 42 U.S.C. § 1983 against twelve deputies: John Leone, Jason Popovich, Troy Tiegs, Randall Dean Root, Richard Schmeltzer, Jason Gorgberg, Rafael Cruz, Paul Volkerson, Hector Cartegena, Tony Rodriguez, Michael Davis, and Dennis Ela (collectively, the "Deputies" or "Officers") (Count I); and against Sheriff Jerry Demings in his official capacity as the Sheriff of Orange County (Count II). Defendants move for summary judgment on all counts. In this context, all record evidence must be viewed in a light most favorable to the Plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 245 (1986). The relevant facts, viewed in that light, are as follows.
On January 4, 2010, Defendant Schmeltzer noticed a stolen Dodge Ram (the "Ram") in the parking lot of a west Orlando apartment complex parked near a GMC Denali (the "Denali") he knew belonged to Breedlove. Breedlove had been a suspect in a prior auto theft investigation in November 2009. That investigation ended in a vehicle pursuit where two occupants fled on foot.1 One occupant, Demetric Carter ("Carter"), was apprehended, but the second escaped—Carter later identified Breedlove as the other suspect. A firearm was recovered, but the parties dispute whether Carter attributed the firearm to Breedlove. Defendants attach great weight to this information because, they claim, it establishes that Breedlove was a flight risk and known to be "frequently armed."
Suspecting that Breedlove had stolen the Ram, Deputies placed a GPS device on the vehicle and followed it when it "went mobile" in the early morning hours of January 5, 2010— driven by Breedlove. While Breedlove was away, the Deputies formulated a plan to arrest himwhen he returned. The plan was to deflate the tires on the Denali and then for Defendants Gorberg and Schmeltzer to use their unmarked OCSO vehicles to block in the Ram and the Denali. Defendants Cruz and Leone were to "take down" Breedlove "preferably after [he] exited the stolen truck and was on foot." (Doc. 83 at 5). Several other deputies were positioned around the complex to contain Breedlove should he attempt to flee.
At 5:00 am on January 5, 2010, Breedlove returned to the apartment complex in the stolen Ram and parked in a spot near his Denali.2 He exited the vehicle and, according to Leone, "may have made two trips back and forth between the [Ram] and [Denali] unloading items." (Doc. 114-1, 53:17-18). Deputies, however, did not attempt to apprehend Breedlove until he entered the Denali and started the engine. 3
Shortly after Breedlove entered the Denali, two or three officers approached with weapons drawn.4 Breedlove quickly reversed out of the parking spot and struck an unoccupied vehicle parked in a space behind the Denali.5 He then accelerated forward in an attempt to exit the parking lot before colliding with an SUV driven by Deputy Schmeltzer. Schmeltzer was attempting to trap the Denali in the parking spot, but arrived slightly late. As a result, Schmeltzer hit the Denali onthe passenger's side door as Breedlove attempted to maneuver around him.6 The Denali accelerated around a corner, sideswiping several parked cars, when it was hit head-on by Defendant Ela's unmarked Ford F-150 (the "F-150").7 Another unmarked OCSO vehicle, driven by Volkerson, came around the back of the F-150 to "back it up" for fear that the Denali could push past the lighter F-150. At this point, Ela's F-150 and Breedlove's Denali were nose-to-nose in a corner of the parking lot. According to Phyllis Kennison, who saw the events from her apartment window, Breedlove was "trapped like a rat" between the F-150 and the back corner of the parking lot.8
Once the Denali was pinned, Officers assumed tactical positions around the front of the car and drew their weapons. Plaintiff relies on one witness who claims that Breedlove immediately raised his hands in surrender, but the Officers opened fire without warning, unloading the first of two volleys into the driver's seat of the Denali. (Doc. 120-1). Defendants claim that shots were fired upon hearing a revving sound from the Denali pushing against the F-150 and seeing Breedlove turn the front wheels to the side, in the direction of several officers. Crediting Plaintiff's account,9 however, it was Ela's F-150 that emitted the revving noise as it forced Breedlove's Denali into the back of a parked car. The Denali had a flat front tire and was bumper-to-bumper against the F-150, leaving no room to maneuver.
Breedlove may have been struck in this initial fusillade, but it is undisputed that after the first round of gunfire he raised his hands and said something to the effect of "they're up," in anattempt to surrender. As the Deputies approached however, they claim Breedlove dropped his hands and again attempted to maneuver around the F-150 by revving the engine and turning the front wheels. It was then that the Deputies fired the second volley. Plaintiff disputes this, relying instead on a witness who claims that the Officers paused only to reload their weapons—Breedlove had his hands up the entire time. (Doc. 120-1).
In all, 137 shots were fired into the Denali, killing Breedlove, who was unarmed. Each Officer fired upon Breedlove, except for Defendants Ela and Davis, who were supervisors on the scene.
Significantly, according to Plaintiff, at no point in the course of these events did the Officers attempt to identify themselves. All the vehicles were unmarked with their headlights and emergency lights turned off. Officers were dressed in either plain clothes or unmarked camouflage with no visible indication that they were members of the OCSO. Moreover, at least one witness suggests that although Officers shouted commands at Breedlove, they never verbally indicated that they were police. (Doc. 120-1).
A party is entitled to summary judgment when it can show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir. 1994). Which facts are material depends on the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Watson v. Adecco Employment Servs., Inc., 252 F. Supp. 2d 1347,1351-52 (M.D. Fla. 2003). In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.
When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324-25 (internal quotations and citations omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial. Id. at 322, 324-25; Watson, 252 F. Supp. 2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) () (citations omitted); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 660 (5th Cir. 1976).
Qualified immunity protects government officials performing discretionary functions from individual liability as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity is an immunity from suit rather than a mere defense to liability, and it is effectively lost if a case is erroneously permitted to go to trial. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d411 (1985). Unless the plaintiff's allegations state a claim of violation of a clearly established constitutional right, a...
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