Jean-Baptiste v. Gutierrez

• Decision Date: 06 December 2010
• Docket Number: No. 10-11129,Non-Argument Calendar,10-11129,n-Argument Calendar
• Parties: Erlis JEAN-BAPTISTE, Plaintiff-Appellee, v. Jose GUTIERREZ, Police Officer, Miami-Dade Police Department, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

627 F.3d 816

Erlis JEAN-BAPTISTE, Plaintiff-Appellee,

v.Jose GUTIERREZ, Police Officer, Miami-Dade Police Department, Defendant-Appellant.

No. 10-11129

Non-Argument Calendar.

United States Court of Appeals,Eleventh Circuit.

Dec. 6, 2010.

Paul A. Avron, Berger Singerman, P.A., Miami, FL, for Plaintiff-Appellee.

Michael Brian Nadler, Wilfredo A. Ferrer, U.S. Atty., Rachel Marie Wilhelm, Miami, FL, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents the issue whether a police officer is entitled to qualified immunity for using deadly force against an armed suspect who was lying in wait after having fled from the vicinity of an armed burglary and robbery. Jose Gutierrez, an officer of the Miami-Dade Police Department, shot Erlis Jean-Baptiste repeatedly after Officer Gutierrez encountered Jean-Baptiste following a high-speed car chase and a later chase by foot. Jean-Baptiste sued Officer Gutierrez for allegedly using excessive force during the encounter, and Officer Gutierrez moved for summary judgment based on qualified immunity. The district court denied the motion on the ground that Officer Gutierrez acted unreasonably by continuing to shoot after his first or second bullet caused Jean-Baptiste to fall to the ground. We hold that Officer Gutierrez acted reasonably and is entitled to qualified immunity. We reverse and render judgment in favor of Officer Gutierrez.

I. BACKGROUND

While on patrol in a marked vehicle, Officer Gutierrez received a report to be on the alert for two black men who were suspected of having committed an armed burglary and robbery and were driving a red Dodge Neon car. Officer Gutierrez later observed a red Neon car traveling at a high rate of speed drive on the shoulder of the road and through a red traffic light. Officer Gutierrez activated his emergency lights and followed the speeding car through several traffic lights until it suddenly turned right and crashed into a wall in the middle of the street. By the time Officer Gutierrez reached the car, Jean-Baptiste and his cohort, Sidney Jean, had fled on foot into a residential area.

Ernesto Perez, who had been servicing an air conditioning unit on the roof of a nearby building, indicated to Officer Gutierrez that the two suspects had fled down the street. Jean-Baptiste and Jean, who were clad in black clothing and wearing black gloves, encountered two police officers who were serving eviction notices.The officers chased Jean-Baptiste and Jean and forced the suspects to backtrack down the same street.

When Officer Gutierrez saw Jean-Baptiste and Jean running toward him, Officer Gutierrez saw that one of them was holding an "unknown object" that Officer Gutierrez thought was a gun. Officer Gutierrez chased Jean-Baptiste and Jean behind a house, where Jean jumped a fence. Officer Gutierrez stopped and saw a shed on his left side.

When he turned to face the shed, Officer Gutierrez saw Jean-Baptiste holding a gun and standing eight to ten feet away. Officer Gutierrez shot continuously 14 bullets, and eight of those bullets struck Jean-Baptiste. Jean-Baptiste suffered six gunshot wounds in his legs and one gunshot wound both in his foot and in his testicles.

After Officer Gutierrez lowered his pistol, he approached Jean-Baptiste and saw that his gun was lying a foot or two away. Officer Gutierrez reported to the police department that "shots had been fired," ejected his empty magazine and reloaded his pistol, and proceeded to secure the area. Jean-Baptiste suffered injuries that confine him to a wheelchair.

In the accounts given by Officer Gutierrez and Jean-Baptiste, there is no dispute that Jean-Baptiste was armed and that Officer Gutierrez fired his pistol without warning, but there are marked disputes about the location of Jean-Baptiste's gun and the reason Officer Gutierrez shot Jean-Baptiste repeatedly. Officer Gutierrez alleged that Jean-Baptiste was pointing a gun at Officer Gutierrez and "signaling" that he would shoot. Officer Gutierrez stated that he fired his pistol continuously because Jean-Baptiste "was still standing pointing [his] gun at me" and "finally went down ... after my last round." Jean-Baptiste alleged that he did not point his gun at or indicate he would shoot Officer Gutierrez. Jean-Baptiste also alleged that he fell to the ground after being struck in the groin by the first or second bullet, after which Officer Gutierrez "maliciously and sadistically" continued to shoot Jean-Baptiste. Notably, Jean-Baptiste never stated whether he retained or lost control of his gun when he fell.

Officers found a 9 millimeter semi-automatic pistol on the ground near clothes that paramedics had cut off Jean-Baptiste. The safety lock of the semi-automatic pistol had been disengaged, the hammer was cocked partially and, although the chamber of the pistol was empty, the magazine attached to the pistol contained 12 rounds of ammunition. Jean-Baptiste wore an ankle sock that had been penetrated by a "single gunshot" at its "top" and had "a corresponding exit hole in the heel," and police found an "apparent projectile ... embedded in the heel of [Jean-Baptiste's] right sneaker." Officers also found an empty ammunition magazine that had been ejected from a Heckler & Koch compact 9 millimeter service pistol. Forensic testing confirmed that twelve spent casings discovered in the grass adjacent to the empty magazine had been fired from Officer Gutierrez's service pistol.

Jean-Baptiste was indicted for eight crimes: burglary with assault or battery while armed; kidnapping with a weapon; aggravated battery with a deadly weapon; robbery with a deadly weapon or firearm; armed carjacking; unlawful possession of a firearm by a convicted felon; unlawful possession of a firearm by a violent career criminal; and aggravated assault on Officer Gutierrez. The firearm charges were dismissed before trial. A jury found Jean-Baptiste guilty of burglary, kidnapping, aggravated battery, robbery, and carjacking, but acquitted him of assaulting Officer Gutierrez.

After his trial, Jean-Baptiste filed a complaint that Officer Gutierrez used excessive force during their encounter. Jean-Baptiste alleged that Officer Gutierrez shot him without "provocation or cause." Jean-Baptiste also alleged that he fell to the ground "immediately" after being shot, and Officer Gutierrez acted unreasonably by continuing to shoot until he emptied the magazine of his pistol.

Officer Gutierrez moved for summary judgment based on qualified immunity. Officer Gutierrez argued that he acted reasonably in using deadly force to protect himself and persons near the scene and, in the alternative, his actions did not violate clearly established law. To support his argument, Officer Gutierrez submitted his sworn statements, statements by co-defendant Jean and the police officers who chased Jean and Jean-Baptiste, and crime scene and forensic reports.

Jean-Baptiste conceded that Officer Gutierrez had acted within the scope of his discretionary authority, but Jean-Baptiste argued that issues of material fact precluded summary judgment based on qualified immunity. Jean-Baptiste argued that Officer Gutierrez acted unreasonably by using deadly force, and Jean-Baptiste attached to his response an affidavit stating that he did not point a gun at Officer Gutierrez or set the trigger in a cocked position. Jean-Baptiste also attached to his response the trial testimony of eyewitness Perez, but Perez acknowledged that he could not see Officer Gutierrez fire his pistol and that he "was too far" to see if Jean-Baptiste had anything in his hand when he was shot.

The district court denied Officer Gutierrez's motion for summary judgment on the ground that he acted unreasonably by using deadly force after the need for force had subsided. The district court viewed the evidence in the light most favorable to Jean-Baptiste and found that Officer Gutierrez "maliciously and sadistically shot a non-resisting, non-fleeing [Jean-Baptiste] an additional ten to twelve times from close range after having incapacitated him with an initial shot to the genital-region and after [Jean-Baptiste]'s weapon was no longer within his control." The district court "conclude[d] that even if the initial use of deadly force was constitutionally permissible, the additional ten or twelve shots fired while [Jean-Baptiste] lay unarmed on the ground in an incapacitated state constituted a Fourth Amendment violation by Defendant Gutierrez."

II. STANDARD OF REVIEW

We review de novo the denial of a motion for summary judgment based on qualified immunity. Townsend v. Jefferson Cnty., 601 F.3d 1152, 1157 (11th Cir.2010). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. At this juncture, the evidence and all reasonable inferences from that evidence are viewed in the light most favorable to the nonmovant, but those inferences are drawn "only 'to the extent supportable by the record.' " Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir.2010) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 1776 n. 8, 167 L.Ed.2d 686 (2007)).

III. DISCUSSION

It is well settled that courts must account "for the fact that police officers are often forced to make...