Lundgren v. McDaniel

• Decision Date: 13 April 1987
• Docket Number: 86-3442,Nos. 86-3364,s. 86-3364
• Parties: Margaret E. LUNDGREN, as Personal Representative of the Estate of Richard F. Lundgren, Deceased, Plaintiff-Appellee, v. John P. McDANIEL, Duane Davis, and Ricky Cloud, as Sheriff and Deputy Sheriffs of Jackson County, Florida, respectively, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 600

814 F.2d 600

Margaret E. LUNDGREN, as Personal Representative of the Estate of Richard F. Lundgren, Deceased, Plaintiff-Appellee, v. John P. McDANIEL, Duane Davis, and Ricky Cloud, as Sheriff and Deputy Sheriffs of Jackson County, Florida, respectively, Defendants-Appellants.

Nos. 86-3364, 86-3442.

United States Court of Appeals,

Eleventh Circuit.

April 13, 1987.

Julius F. Parker, Jr., Haben, Parker, Skelding, Costigan, McVoy & Labasky, Tallahassee, Fla., for defendants-appellants.

Lynn C. Higby, Bryant, Higby & Williams, Panama City, Fla., for plaintiff-appellee.

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

Before RONEY, Chief Judge, KRAVITCH and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

This appeal arises from the death of a store proprietor who was shot by a deputy sheriff when two deputies investigated what they believed to be a burglary of the store. The decedent's wife, Margaret Lundgren, suing on behalf of herself and the decedent's children, brought a lawsuit against the two deputies, Duane Davis and Ricky Cloud, as well as the sheriff, John McDaniel. After a jury trial, the district court entered judgment in favor of plaintiff. The court held Deputies Davis and Cloud liable for $16,565.13 under 42 U.S.C. sec. 1983, and Sheriff McDaniel liable for $198,750.00 under a pendent state law claim for wrongful death. In addition, the

court awarded attorney's fees in the amount of $34,606.50 against defendants, allocating 8% of these against the two deputies, and 92% of these against the sheriff. We affirm the judgment of the district court.

FACTS:

On July 10, 1983, a front window of the Marianna Video Store was broken. Owner Richard Lundgren cleared the broken glass and replaced it with a sheet of plywood. That night, Richard and his wife, Margaret, slept in the store behind a desk.

At around 2:00 a.m. on July 11, 1983, deputy sheriffs Davis and Cloud noticed the broken window, and suspected that a burglary was in progress. They entered the store without announcing themselves. The store was only faintly illuminated by a television.

What happened next is sharply disputed by the parties. At trial, deputy Davis testified that he saw a large shadow or silhouette rise up from behind a desk, saw a flash of light from a gun, and felt a blast of hot air on his forehead. After being shot at, Davis testified, he fired three times in return. When the shooting stopped, Davis went around the desk, shining his flashlight. He saw Richard lying with blood trickling from his head and saw a gun on the floor. Davis testified that Margaret then reached for this gun and that he told her not to touch it. Although Davis testified at trial that Margaret Lundgren fired the initial shot, in a prior statement to an investigator, Davis indicated that Richard Lundgren fired the first shot.

Deputy Cloud testified at trial that he saw a man stand up from behind the desk with a pistol in both hands. Fearing that he would be shot, Cloud closed his eyes or turned his head away and wheeled backwards. As Cloud was wheeling backwards, he heard the first shot. The shot sounded to Cloud like it came from behind the desk. According to Cloud, he then fired repeatedly in return. At trial, Cloud testified that, although the first shot came from behind the desk, he did not know whether Richard or Margaret fired it. In a previous statement given to an investigator, however, Cloud stated that Richard fired first with a gun that was found in the video store.

On direct examination at trial, Margaret Lundgren testified that she woke up her husband when she heard someone walking on the broken glass outside the store. Margaret testified that as her husband Richard "was raising up someone started shooting and [Richard] was shot." According to Margaret's testimony on direct examination, Richard did not get "all the way above the desk" before he was shot; Richard never fired a shot; and she never fired a shot. Also, Margaret denied having later reached for a gun.

On cross examination, Margaret testified that she never saw Richard reach for a gun. When confronted by her prior deposition statement that "I recall him reaching for his gun," Margaret retracted, saying that she did not know whether Richard reached for a gun and that Richard could have fired a shot. Margaret also testified that Richard "never really had a chance to get up off the floor."

Forensic examination revealed that Richard Lundgren had been struck by one bullet in the right temple and that this bullet had first passed through the desk. Investigators found no physical evidence suggesting that Richard or Margaret had fired a shot. The pistol found in the store had lint in the barrel. No ejected shell casings were found. No gunshot residues were found on Richard's hands.

VIOLATION OF FOURTH AMENDMENT

On appeal, appellants argue that the officers' conduct in returning fire was justified and violated no constitutional right. According to appellants, the officers had probable cause to believe that the decedent or plaintiff posed a threat of serious physical harm to themselves or others. Appellants contend that it is uncontroverted that either the decedent or plaintiff rose up from behind the desk with a pistol, apparently intent on using it on the deputies.

If the facts were as appellants claim, then the deputies' conduct would violate no constitutional rights. The Supreme Court has indicated that "if the suspect threatens The jury could have reasonably believed that the officers were neither threatened by a weapon, nor appeared to be threatened by a weapon, nor were fired upon, but rather that the officers without provocation shot at a nondangerous suspect. Indeed, this is apparently what the jury did conclude, since it answered "yes" to special interrogatory questions regarding whether the deputies violated one or more of plaintiff's or decedent's constitutional rights. Under the version of facts apparently believed by the jury, defendants violated the fourth amendment right to be free from unreasonable seizure when firing at Richard Lundgren. See generally Tennessee v. Garner, 471 U.S. 1, 10-11, 105 S.Ct. 1694, 1700-01, 85 L.Ed.2d 1 (1985); Gilmere v. City of Atlanta, 774 F.2d 1495, 1501-02 (11th Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

the officer with a weapon ... deadly force may be used...." Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). But appellants ignore the factual disputes in this case and mischaracterize the record. Whether plaintiff or the decedent stood up behind the desk, threatened the officers with a weapon, or fired a shot, were and are sharply contested by the parties.

QUALIFIED IMMUNITY

Appellants argue that even if their conduct was unconstitutional, they are entitled to qualified immunity on the section 1983 claim because their conduct did not violate a clearly established constitutional right at the time. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Appellants point out that a Florida statute permits an officer to use deadly force to stop a fleeing felon. Fla.Stat.Ann. sec. 776.05 (West 1976 Supp.1986). At the time of the shooting incident in 1983, no Florida court had held this statute unconstitutional. Not until two years later, in 1985, did the Supreme Court hold that the use of force to stop a fleeing felon is unconstitutional unless the officer has probable cause to believe the suspect poses a significant threat of death or physical injury to officer or others. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

If Richard or Margaret had attempted to flee, then defendants might be entitled to qualified immunity. Cf. Brown v. City of Clewiston, 644 F.Supp. 1417, 1420-22 (S.D.Fla.1986) (Florida policeman who shot a fleeing felon in 1979 did not violate a clearly established constitutional right at the time, and is entitled to qualified immunity); Acoff v. Abston, 762 F.2d 1543, 1549-50 (11th Cir.1985) (remanding for determination of whether Alabama police who shot a fleeing felon in 1981 violated a clearly established constitutional right). We do not reach this issue, however, because there is no evidence in the record suggesting that Richard or Margaret were fleeing or that the deputies believed them to be fleeing.

We hold that shooting a suspected felon who was apparently neither fleeing nor threatening the officers or others ¹ was--even in July, 1983--an unreasonable seizure and clearly violated fourth amendment law.

ELEVENTH AMENDMENT

Appellants also argue that the deputies were sued in their official capacities, that Florida has not waived its eleventh amendment immunity to suit in federal courts, and that, therefore, the eleventh amendment precludes the judgment against the deputies on the section 1983 claim. We conclude, however, that the deputies were sued solely in their individual capacities. The eleventh amendment does not bar an award of damages against a defendant in his personal capacity. Gamble v. Florida Department of Health & Rehabilitative Services, 779 F.2d 1509, 1512 (11th Cir.1986).

In the present case, the amended complaint does not unequivocally state whether defendants are being sued officially or personally. The preamble to the amended complaint merely recites that plaintiff is suing "the defendants, John P. McDaniel, Duane Davis, and Ricky Cloud, as Sheriff and Deputy Sheriffs of Jackson County, respectively." The Supreme Court has observed that "[i]n many cases, the complaint will not clearly specify whether officials are being sued personally, in their official capacities, or both. 'The course of proceedings' in such cases typically will indicate the nature of the liability sought to be imposed." Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) (quoting Brandon v. Holt, 469 U.S. 464, 469, ...