McCormick v. City of Fort Lauderdale, 01-16567.

Decision Date11 June 2003
Docket NumberNo. 01-16567.,01-16567.
Citation333 F.3d 1234
PartiesAnthony McCORMICK, Plaintiff-Appellant, v. CITY OF FORT LAUDERDALE, Jonathan Welker, Officer, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Scott Alan Orth, Miami, FL, for Plaintiff-Appellant.

Hal B. Anderson, Clark J. Cochran, Jr., Billing, Cochran & Heath, Alain E. Boileau, Dieter K. Gunther, Adorno & Zeder, P.A., Fort Lauderdale, FL, for Defendants-Appellees.

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

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE,* Judge.


This appeal is about the use of force to make an arrest.

Plaintiff Anthony McCormick was pepper-sprayed and shot by Police Officer Jonathan Welker when Officer Welker attempted to arrest McCormick for aggravated battery. McCormick sued the City of Fort Lauderdale (City) and Officer Welker for, among other things, unlawful arrest and excessive force. The district court granted summary judgment in favor of the City and Officer Welker because the arrest was based upon probable cause and the officer's application of force was reasonable under the circumstances. We affirm.


McCormick always carried with him an ornate, wooden walking stick. McCormick claims he sometimes used the walking stick as a balancing point due to medical difficulties with his back and legs. On 17 May 1996, McCormick was loitering — with his walking stick — in the vicinity of the Unity Coin Laundry (Laundry) in Fort Lauderdale, Florida. McCormick entered the Laundry with his stick in hand, although he was making no use of the stick for walking assistance. Deborah Capuano, a white female, entered the Laundry and began to wash her clothes at a nearby machine. McCormick, a black man, apparently began a verbal altercation with Capuano by saying something to the effect of "bye-bye white race."1

McCormick put pieces of a banana peel into the soap dispenser and across the coin-deposit mechanism of the washing machine used by Capuano. While McCormick continued his racial insults, he put the end of his walking stick inside Capuano's washing machine. McCormick ordered Capuano to leave the Laundry, telling her also that she and all white people should go back west. It was at this point that Turesa Hosein, an owner of the Laundry, called the police.

McCormick admitted that he was "taunting" Capuano by putting his hand "inside the water [of Capuano's washing machine] and basically just, like, flick[ing] the water in [Capuano's] face." McCormick claims that he and Capuano separated briefly and that as he was exiting the Laundry Capuano appeared before him with her hands approaching his neck "with her nails pointing at [McCormick]." McCormick then pushed Capuano; and Capuano fell backwards, striking her head on the pavement.2 Hosein called the police a second time, this time relaying that someone had been hurt at the Laundry.

As Capuano was lying on the ground and bleeding from her head wound, bystanders (including Hosein) attempted to render assistance to Capuano; but McCormick would let no one near Capuano.3 One witness testified that McCormick would swing his stick at anyone who tried to approach Capuano; McCormick did not specifically deny that he was swinging the stick at bystanders. Hosein was eventually able to help Capuano to a chair that Hosein placed outside the Laundry.

In the meantime, Officer Jonathan Welker of the City of Fort Lauderdale Police Department, received a radio call from dispatch about a disturbance at the Laundry involving a black male making racial slurs and pushing a woman. Before Officer Welker arrived at the Laundry, he received another radio call from dispatch that the situation was upgraded to an assault and that a white, female victim required emergency medical services.

Officer Welker testified at his deposition that, when he arrived at the Laundry, he saw a "white female sitting in a chair bleeding profusely from her head." Officer Welker asked Capuano what happened; and, through her crying, Capuano said someone had hurt her. She indicated by pointing with her thumb that her assailant was inside the Laundry. Hosein also indicated that the assailant was in the Laundry wearing a green shirt.4 Officer Welker testified that, from the look of Capuano's injury, it was possible that an aggravated battery — a felony — had been committed.5

Officer Welker testified that he entered the Laundry and saw two men standing next to McCormick.6 Officer Welker asked where was the assailant, and the men standing next to McCormick backed away and indicated that McCormick was the person in question. Officer Welker noticed that McCormick had a blunt object in his hand.

In his affidavit, McCormick claims that his back was to the door when Officer Welker entered the Laundry. McCormick says that he was conversing with another man when he heard someone shouting, "Hey, hey, hey." As McCormick turned to face the shouting person, "a mist of liquid hit [McCormick's] face and eyes and [he] immediately experienced a severe burning sensation and inability to catch [his] breath." McCormick claims in the affidavit that he was never told that he was under arrest nor was he asked to surrender before receiving the pepper spray in the face.7

Officer Welker testified that McCormick was unaffected by the administered pepper spray. "He turned his back to me. He wiped his eyes and turned right back around and looked at me like nothing had happened." As Officer Welker backed out of the Laundry, McCormick continued to advance toward Welker.8 After McCormick refused to obey repeated orders to drop the stick, Officer Welker delivered a second burst of pepper spray. According to Officer Welker, the second spraying also had no effect. Officer Welker radioed for a step-up of his backup response.

McCormick started to walk away with his stick still in hand, and Officer Welker holstered his pepper spray and drew his baton. Officer Welker unsuccessfully attempted to kick the stick out of McCormick's hand. Throughout these events, Officer Welker continually shouted for McCormick to drop the stick. In McCormick's affidavit, he claims that he "heard shouting but, at the time, [he] could not understand what anyone was saying." (In other words, even McCormick's affidavit given five years later creates no dispute of fact that McCormick was told to drop the stick after the pepper-spraying and before the shooting on 17 May 1996.9)

After Officer Welker attempted unsuccessfully to kick the stick out of McCormick's hand, McCormick turned again on Officer Welker. According to Officer Welker, McCormick advanced with the stick raised above his head. Officer Welker testified that McCormick began pumping the stick at him as if he intended to strike Officer Welker. Witnesses verified that McCormick had the stick raised above his head and was either pumping or swinging the stick at Officer Welker. Officer Welker drew his weapon and pointed it at McCormick. Some of the bystanders were then yelling for McCormick to drop the stick.

In the affidavit submitted in opposition to summary judgment, McCormick states only that he "lifted [his] hands in submission," fearing another confrontation with his alleged assailant. (The affidavit makes no mention of the stick in the events immediately preceding the shooting and, therefore, directly contradicts none of the evidence submitted by the defendants on this point.)

McCormick was advancing on Officer Welker with the stick raised in a striking position. While retreating from McCormick, Officer Welker tripped over a parking stone (that piece of concrete that defines the head of a parking space). Officer Welker testified that McCormick then charged Officer Welker as the officer went to the ground. Officer Welker fired a deliberate shot — shooting at McCormick's center mass — as Welker was falling. Both McCormick and Welker looked down and saw blood. But McCormick still had not dropped the stick and was continuing forward. Officer Welker feared that McCormick might have access to his firearm if McCormick successfully attacked him with the stick. Officer Welker fired a second shot at McCormick which missed him altogether.

Officer Livingston then arrived on the scene. Officer Livingston confirmed that when he arrived he saw McCormick — with blood already on him — approaching Officer Welker with the stick in his hands, while Officer Welker continually ordered McCormick to drop the stick. Officer Livingston pepper-sprayed McCormick with no apparent effect. Officer Livingston then rushed McCormick, unsuccessfully attempting to take McCormick to the ground. Both officers eventually took McCormick to the ground, but they were unable to restrain him. McCormick was able to rise again to his feet, requiring Officer Livingston to make a full tackle to get McCormick back to the ground. Still, McCormick continued to resist and struggle, and the officers were unable to subdue McCormick.

Police officers from Wilton Manors then arrived on the scene and used a stun gun against McCormick. Only then were the officers able to place handcuffs on McCormick. McCormick was taken into custody and charged with aggravated battery on a law enforcement officer, resisting arrest with violence, and battery.

In November 1999, McCormick brought suit against Officer Welker and the City.10 McCormick claimed that Welker was liable under 42 U.S.C. § 1983 for violating McCormick's constitutional rights under the Fourth and Fourteenth Amendments11 for unlawful arrest and excessive force. McCormick also alleged that Welker was liable for common law assault and battery. Against the City, McCormick claimed that the supervisory customs or policies of the City violated 42 U.S.C. § 1983 by permitting Officer Welker's constitutional violations; that the City was vicariously liable for the...

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