O'Kelley v. Craig
| Decision Date | 16 July 2019 |
| Docket Number | No. 18-14512,18-14512 |
| Parties | JANET TURNER O'KELLEY, Individually and as Personal Representative of the Estate of John Harley Turner, JOHN ALLEN TURNER, Plaintiffs - Appellants, v. SHERIFF DONALD E. CRAIG, SGT. TRAVIS PALMER CURRAN, a.k.a. Travis Lee Palmer, DEP. FRANK GARY HOLLOWAY, DEP. KEELIE KERGER, DEP. BILL HIGDON, DEP TODD MUSGRAVE, et. al., Defendants - Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 2:17-cv-00215-RWS
Appeal from the United States District Court for the Northern District of Georgia Before MARCUS, ROSENBAUM, and JULIE CARNES, Circuit Judges.
This case concerns a deadly encounter between John Harley Turner ("Harley") and several law-enforcement officers on the night of October 24, 2015. The officers made contact with Harley in the course of investigating a 911 call where a hunter reported that a resident, later determined to be Harley, had accused some hunters of trespassing on his land and had threatened them with bodily harm if they did not leave. Harley spoke with the officers from behind a closed gate on property he shared with his mother and her husband. Harley was armed and refused multiple commands to put the gun down, but he never threatened the officers or pointed the gun at them. After more than 30 minutes of fruitless negotiation, one of the officers lured Harley closer to the fence under the guise of inviting him to talk. As Harley approached, another officer, who had sneaked over the fence onto Harley's property, fired three rounds from a twelve-gauge shotgun filled with shot-filled beanbags, striking Harley. Harley returned fired, prompting the other officers to shoot and kill him.
Harley's mother and father, Janet Turner O'Kelley and John Allen Turner, respectively (collectively, "Plaintiffs"), filed suit under 42 U.S.C. § 1983, alleging several claims on his behalf, including (1) an unlawful-seizure claim against the officers who were involved in the events that led to Harley's death; and (2) a failure-to-train claim against Donald Craig, the Sheriff of Pickens County. They also brought a state-law claim for wrongful death. The district court granted the Defendants' motion to dismiss, which invoked the defenses of qualified and official immunity. Plaintiffs now appeal.
At around 8:30 p.m. on October 24, 2015, a hunter called 911 to report that he and other hunters had been threatened by a resident while coon hunting.1 The hunter claimed that a person on a neighboring property had yelled at them through the woods, accusing them of trespassing and threatening them with bodily harm if they did not leave. After ensuring that the hunter was safe, the 911 operator reported the incident to law enforcement as a "completed domestic disturbance."
Pickens County Deputies Bill Higdon, Frank Holloway, and Keelie Kerger responded to the call. They spoke with the hunter and then proceeded to the subject property at 1607 Carver Mill Road, arriving at around 9:00 p.m.
Harley lived at 1607 Carver Mill in a cabin behind the main house, which was occupied by Harley's mother, Janet Turner O'Kelley ("Mrs. O'Kelley"), and herhusband, Stan O'Kelley ("Mr. O'Kelley"). The two residences were enclosed in a fence with a closed gate that blocked the driveway.
When the deputies arrived, they spoke with Mr. O'Kelley outside the closed gate. Mr. O'Kelley informed them that the 911 call was about his stepson Harley and that Harley was armed. The deputies sent Mr. O'Kelley to a neighbor's house.
Around this same time, Harvey, shirtless and armed with a pistol in a chest holster, approached the gate from the cabin with a flashlight talking loudly about trespassing. Shouting and with guns raised, the deputies ordered Harley to put his hands up and his gun down. The deputies did not immediately identify themselves as law-enforcement officers. Harley replied, "I already put the gun down," and asked, "Why are you trying to trespass?" One of the deputies responded, "We're not trespassing; we're cops."
Meanwhile, additional law-enforcement officers arrived on the scene. According to the complaint, State Troopers Rodney Curtis and Jonathan Salcedo "took up sniper positions" armed with rifles. Pickens County Deputies Travis Curran and Todd Musgrave joined the other deputies armed with shotguns, one of which was loaded with "less-lethal" beanbag rounds.
Harley began walking back towards his house with his hands above his head. He held the flashlight in one hand and the gun in the other. The deputies ordered him to put the gun down and get on the ground. Harley briefly turned around andtold the officers to just keep trespassers off his property. He then turned back and continued on his way, while the deputies, with guns still pointed at him, ordered him to come back to the fence.
Mrs. O'Kelley arrived at the property at around 9:05 p.m., just over 30 minutes after the 911 call and five minutes after the first deputies arrived. She saw that Deputy Curran had a shotgun, and she told the officers that there should be no shooting and that Harley would defend himself if they opened fire. The deputies would not let Mrs. O'Kelley talk to Harley, and they directed her away from the property.
A tense verbal back-and-forth ensued for approximately 30 minutes. The deputies repeatedly tried to get Harley to put his gun down. Harley paced back and forth, wearing his gun in the chest holster, and asserted that he simply wanted the officers to keep trespassers away from his property. Harley was distressed and perceived the officers as threatening him. Several times, he told them to "go ahead and shoot me." The deputies repeatedly assured Harley they would not shoot him.
In the middle of this back-and-forth, at around 9:12 p.m., Harley announced that he was tired and wanted to go to bed, and that he was going to his cabin to get a drink of water. While he was away, Deputies Curran and Higdon, armed with shotguns, crossed the fence into the property and took cover in order to "try to get a better position" for a shot on Harley.
Harley returned from his cabin with a flashlight in one hand and a jug of water in the other. His gun remained in his chest holster. He began talking to the deputies again, calling them trespassers and telling them: "I have never crossed this line, and y'all were the ones have been the fuckin' aggressors." Harley announced that he was tired and would like to go to bed.
At Deputy Curran's urging, Deputy Kerger invited Harley to come talk at the fence for the purpose of drawing him closer to a spot where Curran could get a good shot. Kerger told Harley that she did not have her gun, and she indicated that she could take a statement from him if he put his gun down. Harley responded, "I already did." Kerger pointed out that the gun was still on Harley's chest. They continued talking, with Kerger saying that she would not talk with him until he took his gun out of its holster and put it on the ground.
About thirty seconds later, an officer stated in a low voice, "He's coming back towards the fence." At that point, Deputy Curran fired three beanbag rounds from his shotgun. At least one round struck Harley and knocked him down. Harley drew his pistol and returned fire. The other officers opened fire, killing Harley.
In October 2017, Plaintiffs filed a complaint in the U.S. District Court for the Northern District of Georgia, alleging two federal claims under 42 U.S.C. § 1983. First, Plaintiffs alleged an unlawful warrantless seizure of Harley within the curtilageof his home, in violation of the Fourth Amendment, by Deputies Curran, Higdon, Holloway, Kerger, and Musgrave (the "Deputies"), and by Troopers Curtis and Salcedo (the "Troopers"). Second, Plaintiffs alleged that Sheriff Craig failed to adequately train deputies in arrest procedures and the use of force. They also alleged a state-law wrongful-death claim against the Deputies.
The defendants filed motions to dismiss, invoking the federal defense of qualified immunity against the illegal-seizure claim and the state defense of official immunity against the wrongful-death claim. As to the failure-to-train claim, Sheriff Craig maintained that it failed because there was no underlying constitutional violation and because Plaintiffs' allegations were vague and conclusory. The district court granted the motions to dismiss, and Plaintiffs now appeal.
We review de novo the grant of a motion to dismiss, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor. Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019). "To withstand a motion to dismiss under Rule 12(b)(6), [Fed. R. Civ. P.], a complaint must include enough facts to state a claim to relief that is plausible on its face." Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court todraw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Qualified immunity protects government officials from individual liability for job-related conduct unless they violate clearly established law of which a reasonable person would have known. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2013). "It serves the purpose of allowing government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation." Carter v. Butts Cty., 821 F.3d 1310, 1318-19 (11th Cir. 2016) (quotation marks omitted). Because qualified immunity is a defense not only from liability, but from suit, the defense may be raised in a motion to dismiss. Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019).
Officials invoking qualified immunity must show first that they were acting within the scope of their discretionary authority. Id. There is no dispute...
To continue reading
Request your trial