Furtado v. Yun Chung Law

• Decision Date: 02 February 2011
• Docket Number: No. 4D09-3223.,4D09-3223.
• Citation: 51 So.3d 1269
• Parties: Richard FURTADO, individually and as Personal Representative of the estate of Marilou Forrest, Appellant, v. Jason YUN CHUNG LAW a/k/a Yun Chung Jason Law, in his individual capacity, and Ric Bradshaw, in his official capacity as Sheriff of Palm Beach County, Appellees.
• Court: Florida District Court of Appeals

51 So.3d 1269

Richard FURTADO, individually and as Personal Representative of the estate of Marilou Forrest, Appellant,

v.Jason YUN CHUNG LAW a/k/a Yun Chung Jason Law, in his individual capacity, and Ric Bradshaw, in his official capacity as Sheriff of Palm Beach County, Appellees.

No. 4D09-3223.

District Court of Appeal of Florida, Fourth District.

Feb. 2, 2011.

Louis Silber of Silber, Valente & Davis, West Palm Beach, James K. Green of James K. Green, P.A., West Palm Beach, and Maria Kayanan of American Civil Liberties Union Foundation of Florida, Inc., Miami, for appellant.

Fred H. Gelston, West Palm Beach, for appellee, Jason Yun Chung Law.

Harriet R. Lewis of Lewis, Stroud & Deutsch, P.L., Boca Raton, for appellee, Ric Bradshaw.

MAY, J.

In this age of increased awareness of mental health issues, there is still so much to be done to ensure the safety of the public as well as those suffering from mental illness. This case illustrates why. The plaintiff appeals a summary judgment in favor of the Sheriff and a deputy, which resulted from the shooting death of the plaintiff's wife during the execution of a Baker Act certificate.¹ For the reasons that follow, we affirm.

The tragic death of the plaintiff's wife resulted when deputies from the Palm Beach County Sheriff's Office attempted to take the plaintiff's wife into custody on a Baker Act certificate for transportation to a mental health facility for observation and treatment. The complaint consisted offour counts against the Sheriff, and three counts against the individual deputy involved in the shooting. The four counts against the Sheriff included a wrongful death claim brought under 42 U.S.C. § 1983, survivorship damages under § 1983, a wrongful death claim under Florida law, and a claim under the Americans with Disabilities Act (ADA). The counts against the deputy included the wrongful death and survivorship claims under 42 U.S.C. § 1983, and the wrongful death claim under state law.

The facts are undisputed. The decedent's husband contacted the Sheriff's Office to transport his wife to a mental health facility, pursuant to a Baker Act certificate. The certificate indicated that the decedent was in a "persistent severe delusional and agitated state," had a "long history of severe depression," and had been "walking around the house with knives...." She had "essentially included everyone in her delusional system, including her husband and [the psychiatrist]" and was "probably holding knives at the moment." "There [was] a substantial likelihood that without care or treatment [she] w[ould] cause serious bodily harm to [her]self and others." The Baker Act Certificate was signed at 9:00 a.m. on March 27, 2006.

Around 10:00 a.m. on March 27, 2006, a deputy was dispatched to the scene. The deputy requested back-up before he arrived, and a third deputy was requested at the scene. The husband was standing outside the home when the deputies arrived. He indicated that he wanted the deputies to take the decedent to a mental health facility. He informed them that the decedent was in the home, had tried to commit suicide a few days earlier, kept knives at her side for protection, and was suffering from delusional paranoia.

The three deputies decided that the lead deputy would go in front with his service weapon un-holstered; the back-up deputy would follow with his Taser drawn; and the third deputy would enter last with his service weapon un-holstered. Before searching the home, the lead deputy called for the decedent. Receiving no response, the deputies searched the home.

After searching the home and securing all areas, except the master bedroom and bathroom, the lead deputy heard a door close; the back-up deputy smelled cigarette smoke coming from the master bedroom. Before the deputies approached the bedroom, they announced the Sheriff's Office was present. The lead deputy called the decedent again and indicated that he wanted to speak with her.

The deputies searched and secured the master bedroom and then entered the bathroom. The lead deputy did not know if she was hurting anyone, cutting herself, or trying to kill herself. When he entered the bathroom, he announced their presence, indicated that they were there to help her, and told her to come out of the bathroom. The decedent rose from behind a door near the commode and came at the lead deputy with a knife raised over her head. The back-up deputy used his Taser, but there was no evidence that it struck her. The decedent continued to move toward the lead deputy. The lead deputy fired his service weapon. The bullet struck her in the chest, causing her to fall with the knife remaining in her hand. The lead deputy reported the shooting and tried to perform CPR on the decedent until the paramedics arrived. The decedent was later pronounced dead.

The former husband filed a complaint against the lead deputy individually and the Sheriff in his official capacity, alleging section 1983 wrongful death claims, survivorship damages, a Florida wrongful death claim, and a claim under the ADA against the Sheriff alone. The parties stipulatedthat the lead deputy was acting under color of state law and that the decedent had a mental disability within the meaning and purview of Title II of the ADA.

Following extensive discovery, the Sheriff and deputy filed a joint motion for summary judgment. They attached extensive appendices, containing deposition transcripts, sworn statements, and affidavits. In an affidavit, a Captain of the Sheriff's Office opined that the Sheriff does not tolerate any deviation from his policies on the use of deadly and non-deadly force, and "otherwise does not authorize or permit deputy sheriffs to use excessive deadly force or excessive non-deadly force." Another Captain explained that deputies must attend and complete training courses in the use of force at least once per year.

The Sheriff's Office provides specialized classes each year to address the circumstances presented by the mentally ill, and to provide needed tools to handle encounters with them. These classes are part of the Palm Beach County Crisis Intervention Team Program (CIT). The CIT addresses suicide prevention, dealing with suicidal persons and persons who pose a threat to themselves or others, communicating with the mentally ill, and techniques for calming mentally ill persons. Although participation is voluntary, more than 200 deputies in the Sheriff's Office have been trained as CIT officers, including the lead deputy in this case.

In opposition to the motion for summary judgment, the husband filed an expert affidavit of a retired police chief. The expert opined that the Sheriff was deliberately indifferent to, and exhibited reckless disregard for, the safety of the decedent and other mentally ill persons. He based his opinion on the Sheriff's failure to recall efforts to implement the CIT in Palm Beach County, what training his deputies received concerning the mentally ill, and the lack of a dispatch protocol. The expert further opined that the ADA requires agencies to review their services, policies, and practices for compliance with the ADA, and the Sheriff's Office did not have a policy or protocol for encounters with the mentally ill.²

The expert further opined that the three deputies "violated every recommended procedure recognized and accepted in the law enforcement profession for dealing with the mentally ill...." ³ The lead deputy violated recognized protocols by not allowing the husband into the home, failing to learn the layout of the home, opening the bathroom door before talking to the decedent, and taking only a couple of minutes from the time of entry to the shooting. In his opinion, no reasonable officer would have created the face-to-face encounter with the decedent, and should have tried to calm the situation to avoid the use of deadly force.

The trial court granted the joint motions and entered a final judgment, from which the plaintiff now appeals.

The standard of review on orders granting summary judgment is de novo. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). Summary judgment should be granted "only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id.

The plaintiff argues that genuine issues of material fact remain between the expert's affidavit and the defendants' testimony and affidavit. In particular, the plaintiff argues that the totality of the circumstances must be viewed and not just what transpired when the deputies entered the bathroom. We agree that the totality of circumstances should be reviewed, but considering the totality of the circumstances, we find no error in the trial court's entry of summary judgment.

Section 1983 Claims Against the Sheriff and the Deputy

Four counts of the complaint alleged violations of section 1983. Two counts alleged excessive force resulting in wrongful death against the Sheriff and the lead deputy, and two counts alleged the same excessive force resulting in the husband's survivorship claims against each.

"To state a claim under 42 U.S.C. § 1983, 'a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.' " Abraham v. Raso, 183 F.3d 279, 287 (3d. Cir.1999) (quoting West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). In establishing a constitutional violation by alleging a claim of excessive force, a plaintiff must show that a seizure occurred and it was unreasonable. Id.

"[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). "[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in...