Felio v. Hyatt

• Decision Date: 26 January 2016
• Docket Number: No. 14-15702,14-15702
• Parties: TENISHA FELIO, Individually, JOHN E. TOMLINSON, as Administrator of the Estate of James Edward Felio (on behalf of Tenisha Felio and the minor children of James Edward Felio and Tenisha Felio), Plaintiffs-Appellants, v. CHRISTOPHER HYATT, Individually, and in his capacity as a police officer for the City of Lawrenceville, Georgia, KARL HYDRICK, Individually, and in his capacity as a police officer for the City of Lawrenceville, Georgia, CITY OF LAWRENCEVILLE POLICE DEPARTMENT, CITY OF LAWRENCEVILLE, GEORGIA, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

TENISHA FELIO, Individually, JOHN E. TOMLINSON,as Administrator of the Estate of James Edward Felio(on behalf of Tenisha Felio and the minor children ofJames Edward Felio and Tenisha Felio), Plaintiffs-Appellants, v. CHRISTOPHER HYATT, Individually,and in his capacity as a police officer for theCity of Lawrenceville, Georgia, KARL HYDRICK,Individually, and in his capacity as a police officer forthe City of Lawrenceville, Georgia,CITY OF LAWRENCEVILLE POLICE DEPARTMENT,CITY OF LAWRENCEVILLE, GEORGIA, Defendants-Appellees.

No. 14-15702

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 26, 2016

[DO NOT PUBLISH]

D.C. Docket No. 1:12-cv-04186-ODE

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

Before HULL and JILL PRYOR, Circuit Judges, and CONWAY,^* District Judge.

PER CURIAM:

In this 42 U.S.C. § 1983 action, plaintiffs Tenisha Felio, as surviving spouse, and John Tomlinson, as administrator of the estate of James Felio, appeal the district court's grant of summary judgment to the defendants on the federal claims for excessive use of deadly force and the state law claim for wrongful death. James Felio, although unarmed, was shot and killed during an interaction with defendants Officer Christopher Hyatt and Officer Karl Hydrick of the defendant City of Lawrenceville Police Department. Importantly, the defendant officers knew that Mr. Felio did not have a weapon on him.

After review of the record and with the benefit of oral argument, we affirm as to defendants Officer Hydrick, the City of Lawrenceville, and the City of Lawrenceville Police Department, and reverse as to Officer Hyatt.

I. STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment and its determination that defendants Officer Hyatt and Officer Hydrick were entitled to qualified immunity. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). At the summary judgment stage, we view the facts in the light most favorable to the plaintiff and draw all inferences in the plaintiff's favor. Singletary v. Vargas, 804 F.3d 1174, 1176 n.2 (11th Cir. 2015) (citing Tolan v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861, 1866 (2014)). Summary judgment is appropriate only when, under the plaintiff's version of the facts, "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).

II. FACTUAL BACKGROUND

Here, during their depositions, Officers Hyatt and Hydrick testified that they responded to a 911 call reporting a domestic disturbance at a residence on December 11, 2010. When they arrived, Mr. Felio was asleep in the upstairs bedroom. Officer Hyatt pulled back the covers and woke Mr. Felio, who was naked. They gave Mr. Felio a pair of pants and started questioning him. Neither officer observed a weapon on Mr. Felio's naked body or in the pants they gave him.

After Mr. Felio refused to respond to the officers' questions, the officers attempted to arrest him. However, Mr. Felio resisted, and a struggle ensued on the bed, during which Officer Hydrick tased Mr. Felio approximately nine times.¹ As the struggle continued, Mr. Felio and Officer Hydrick ended up rolling off the bed and wrestling on the floor. Even off the bed, Mr. Felio was on his back, with Officer Hydrick on top of him.

According to the officers, Mr. Felio attempted to grab Officer Hydrick's gun from the holster on Officer Hydrick's right side during the wrestling. The defendants testified that Mr. Felio put his hand on Officer Hydrick's gun, which was in the holster, but admit that the firearm at all times remained secured in the holster. They explained that holsters have a safety mechanism or latch to keep the gun inside.

While Mr. Felio and Officer Hydrick struggled, Officer Hyatt feared that Mr. Felio would ultimately take control of the weapon in Officer Hydrick's holster. So Officer Hyatt yelled "lethal" to warn Officer Hydrick that he was going to shoot. While on the floor on top of Mr. Felio, Officer Hydrick rolled slightly away, with Mr. Felio still grabbing towards the gun, and Officer Hyatt fatally shotMr. Felio in the abdomen. Officer Hyatt's weapon was less than ten feet from Mr. Felio when he fired the single shot.² The officers testified that it was a "dynamic" scene and only a couple seconds passed between Mr. Felio's reaching for Officer Hydrick's gun and Officer Hyatt's firing. The officers admit, however, that Mr. Felio, once off the bed, remained lying on the floor.

Tenisha Felio, the spouse, recounted a dramatically different series of events. Mrs. Felio testified that the struggle was over before she arrived upstairs and before the shot. She saw Mr. Felio lying still on his back on the floor, with his hands empty and up in the air to the side of his head. Mrs. Felio paints a picture of Mr. Felio surrendering. Mr. Felio looked tired and was not moving or speaking. According to Mrs. Felio, Officer Hydrick was standing in the corner of the bedroom, while Officer Hyatt was standing at the foot of the bed and had his gun out.

Also according to Mrs. Felio, Officer Hyatt was holding the gun with both hands, but did not have it aimed. Officer Hyatt then removed his right hand from the gun and waved toward Officer Hydrick, signaling Officer Hydrick to move back. He returned his right hand to the gun. After seeing this, Mrs. Felio yelled, "[D]on't shoot!" In response, Officer Hyatt took his left hand off the gun andwaved her out of the way. Officer Hyatt returned his left hand to the gun, and using both hands, aimed the gun down at Mr. Felio and shot.

Mrs. Felio testified that Officer Hyatt had "plenty of time to wave" people back out of the way and "still shot" Mr. Felio, who was lying on his back on the floor. She did not disagree when defense counsel characterized her version of the events as a shooting "in cold blood." At the time of Officer Hyatt's shooting, Mrs. Felio places Officer Hydrick standing over in the corner and not engaged with Mr. Felio.

Anita Flowers, Mrs. Felio's cousin, also witnessed part of the incident and testified that, seconds before she heard the gunshot, Mr. Felio was lying on the floor with his torso slightly raised and no one else was on the floor with him. Officer Hyatt was standing nearby and looked "relaxed," and she could not see Officer Hydrick but deduced that he must have been standing. Ms. Flowers left the bedroom area because she thought the officers were about to handcuff Mr. Felio and the struggle was over.

In recounting the plaintiffs' version of the facts, we recognize that the parties hotly dispute what occurred at the Felio residence, and that the jury ultimately may not adopt Mrs. Felio's and Ms. Flower's account of the events. But we must accept their version as true for purposes of our ruling at this juncture. See Singletary, 804 F.3d at 1176 n.2. And their version has Mr. Felio lying still on hisback on the floor, unarmed and compliant, with only the pants on that the officers gave him.

Mrs. Felio's and Ms. Flower's deposition testimony created genuine disputes of material fact as to the circumstances of the shooting and rendered summary judgment inappropriate. See Fed. R. Civ. P. 56(a). We briefly explain why defendant Officer Hyatt is not entitled to judgment as a matter of law on the plaintiff estate's § 1983 claim against him.³ See id.

III. EXCESSIVE FORCE

The Fourth Amendment prohibits officers from using excessive force when conducting an arrest. See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871 (1989). Courts examine the reasonableness of the force in light of the particular circumstances of the case in order to determine whether the force was excessive. See id. at 396-97, 109 S. Ct. at 1871-72. This is an objective inquiry and asks how a reasonable officer at the scene would act. See id. at 396-97, 109 S. Ct. at 1872.

Officers acting within their discretionary authority may also seek protection from suit through qualified immunity. See Lee, 284 F.3d at 1193-94. An officer isprotected by qualified immunity unless his conduct violates clearly established federal law. See id.

Once an officer establishes that he was acting within his discretionary authority, this Court applies a two-part test to determine whether the plaintiff has shown "that qualified immunity is not appropriate." Id. at 1194. First, we ask whether the officer violated a federal constitutional or statutory right. Id. at 1193-94. Then, we determine whether the right was clearly established such that the officer would have been "on notice" that his conduct was unlawful. Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009). A right can be clearly established by: (1) "case law with indistinguishable facts"; (2) "a broad statement of principle within the Constitution, statute, or case law"; or (3) "conduct so egregious that a constitutional right was clearly violated." Id. at 1291-92.

Drawing all inferences in the plaintiff estate's favor, as we must, we are confronted with a scene in which Mr. Felio, unarmed, was lying still on his back on the floor with his hands up by his head to surrender when Officer Hyatt shot him. See Singletary, 804 F.3d at 1176 n.2. He was not resisting the officers or moving. He had no weapon and was complying with the officers' authority by lying still on his back. Importantly, in this case the officers knew Mr. Felio had no weapon, and no officer contends that he thought he saw a weapon or an object that might be used as a weapon.

Furthermore, based on Mrs. Felio's evidence, a jury could reasonably find that Officer Hydrick was completely disengaged from the preceding struggle and standing away from Mr. Felio in the corner of the room. Enough time even passed between Officer Hydrick disengaging and the shot that Officer Hyatt was able to wave to Officer Hydrick, wave to Mrs. Felio in response to her plea, and aim his gun. Under her version of the facts, a jury could...