McCullough v. Antolini

• Decision Date: 26 February 2009
• Docket Number: No. 08-10176.,08-10176.
• Citation: 559 F.3d 1201
• Parties: Pearlie McCULLOUGH, as grandmother and personal representative of the estate of her grandson, Marquell McCullough, deceased, Plaintiff-Appellee, v. David ANTOLINI, Deputy Sheriff, in his individual capacity, Nelson DeLeon, Deputy Sheriff, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

559 F.3d 1201

Pearlie McCULLOUGH, as grandmother and personal representative of the estate of her grandson, Marquell McCullough, deceased, Plaintiff-Appellee, v. David ANTOLINI, Deputy Sheriff, in his individual capacity, Nelson DeLeon, Deputy Sheriff, in his individual capacity, Defendants-Appellants.

No. 08-10176.

United States Court of Appeals, Eleventh Circuit.

February 26, 2009.

Matthew P. Farmer, Farmer & Fitzgerald, P.A., Tampa, FL, for Plaintiff-Appellee.

Richard Courtney McCrea, Jr., Greenberg Traurig, P.A., Tampa, FL, for Defendants-Appellants.

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

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

In this civil rights case, Pinellas County sheriff's deputies David Antolini and Nelson DeLeon appeal from the district court's denial of their motion for summary judgment on the basis of qualified immunity. The sheriff's deputies used deadly force against Marquell McCullough in a rapidly unfolding scenario early in the morning hours of May 2, 2004. The facts, taken in the light most favorable to McCullough, established that he disobeyed a police command and refused to pull his truck over, led the police on a high speed chase, and then after finally pulling over, refused to show his hands or respond to the deputy sheriff's orders and drove his truck in the direction of a sheriff's deputy standing nearby.

After thorough review, we conclude that the sheriff's deputies are entitled to qualified immunity; their actions did not constitute excessive force under the Fourth Amendment. Accordingly, we reverse the denial of summary judgment and remand for further proceedings consistent with this opinion.

I.

In conducting de novo review of the district court's resolution of a summary judgment motion based on qualified immunity, we resolve all issues of material fact in favor of the plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). As we noted in Lee,

we approach the facts from the plaintiff's perspective because "[t]he issues appealed here concern not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of clearly established law." Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir.1998). As this Court has repeatedly stressed, the "facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case". Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir.2000). Nevertheless, for summary judgment purposes, our analysis must begin with a description of the facts in the light most favorable to the plaintiff. See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002).

284 F.3d at 1190. Because the plaintiff in this action is deceased and there is no complete witness testimony, we necessarily rely on the facts presented by the defendants, but where there is a discrepancy between the statements of the defendants, we have resolved the dispute by using only those statements most favorable to the plaintiff. See generally Skrtich, 280 F.3d at 1299 ("On review of a district court's denial of summary judgment, the Court considers the pleadings, depositions, affidavits, answers to interrogatories and admissions together with the affidavits if any ... in the light most favorable to the non-moving party.").

This tragic story begins at approximately 1:00 a.m. on May 2, 2004, when Pinellas County sheriff's deputy John Syers, Jr. received a report about individuals dealing narcotics at the La Quinta Inn located on 34th Street North in Pinellas County. Syers pulled his unmarked police car into the La Quinta Inn parking lot and observed what he believed to be a drug transaction between two individuals. He pursued and stopped one of the individuals, Donald Mohyla, and then returned to the parking lot. When he re-entered the parking lot, he saw the man whom he believed to be the other individual involved in the drug transaction, Marquell McCullough. As Syers approached McCullough, McCullough got into his white pickup truck and drove out of the parking lot. Syers observed that the tint on the truck's windows was too dark, in violation of Florida law.

He radioed the vehicle's tag number as well as his suspicion of drug activity to deputies Antolini and DeLeon and told them they had probable cause to conduct a traffic stop for excessive window tint. Antolini followed the truck, and pulled his police car behind it as it stopped at a traffic light at the intersection of 38th Ave North and 34th St. North. DeLeon pulled his police cruiser behind the police cruiser driven by Antolini and the truck driven by McCullough. When the light turned green, McCullough accelerated his truck heading south. Both Antolini and DeLeon then activated their emergency lights and sirens and followed the truck. The truck did not pull over, instead continuing to accelerate to approximately sixty miles per hour. After the truck went through the intersection of 22nd Ave. North, it pulled into a shopping center parking lot. Antolini followed the truck, and DeLeon in turn followed but was further behind at this point.

The ground was wet from a previous rain, and shortly after McCullough drove into the parking lot, his truck fishtailed and spun around up to 270 degrees. According to testimony from a taxi cab driver driving near the scene, Thomas Bowen,¹ "it looked like [McCullough] tried to make a U-Turn and leave the parking lot." According to deputy Antolini, McCullough's truck then came to a stop at approximately a forty-five degree angle to, and a few feet away from Antolini's police car which then stopped. Antolini exited his vehicle, drew his firearm and walked to the front of his police car. Antolini pointed his firearm at the driver of the truck and yelled at McCullough, directing him to show his hands. In his affidavit in support of summary judgment, Antolini avers "I was able to make eye contact with the driver of the truck." The driver did not show his hands or respond to the officer's command.

While this was happening, deputy DeLeon drove into the parking lot. According to his statement to investigators, "deputy DeLeon was coming in a little fast as the parking lot was wet from a recent rain." According to witness Bowen, it looked like DeLeon (along with Antolini) were trying to box McCullough in. DeLeon was passing the right side of Antolini's car, applied his brakes, skidded past the passenger side of Antolini's car, and struck McCullough's truck. The force of the collision jammed the driver's side door of deputy DeLeon's cruiser shut, and left the cruiser and the truck inches apart.

DeLeon said that he yelled to Antolini that he was "stuck," and Antolini reported hearing DeLeon yell something. Notably, at this point, both Antolini and DeLeon heard McCullough's truck's engine revving, and DeLeon thought he heard its tires spinning. DeLeon drew his firearm and fired one shot through his closed driver's-side window at the truck's windshield. Antolini then fired three shots towards the truck's windshield. Antolini was unable to determine whether these shots struck McCullough.

At this point, the truck went into reverse, and spun its tires. Antolini said he saw the truck back away from DeLeon's cruiser and its front wheels swing in his direction. He then fired another round at the truck's windshield and jumped on the hood of his cruiser in order to avoid being struck by the moving vehicle. McCullough drove the truck towards deputy Antolini and it struck Antolini's police cruiser in the front passenger corner or front right bumper. The damage to Antolini's car was limited to some paint transfer from the white truck to the right front bumper of Antolini's cruiser, suggesting that the truck was moving slowly.

The truck then kept moving westward, continuing to "mov[e] out of the boxed-in situation that the officers had him in"² and away from Antolini and DeLeon. According to DeLeon, the truck was then moving at a slow speed across the parking lot toward the taxi cab now parked at the parking lot's exit, and Antolini and DeLeon were able to move alongside the truck and stay at least even with the passenger column of the truck. As the truck rolled away, Antolini and DeLeon followed the truck on foot, both along the passenger side, and each fired more rounds at the passenger side of the vehicle. DeLeon said that he fired more rounds because he heard gun shots and did not know who was firing them. Antolini told investigators that he remembered telling DeLeon to "watch your crossfire," but said he was not sure where DeLeon was standing at the time.

The truck finally rolled to a stop when it entered a shallow ditch at the edge of the parking lot, before the sidewalk. Antolini and DeLeon reloaded and approached the front of the truck with weapons pointed at the passenger side. Antolini called to report the incident, and McCullough was pronounced dead at the scene by arriving paramedics. The entire incident took place over a very short period of time.³

According to the medical examiner's report, McCullough died of multiple gunshot wounds. Nine bullets struck McCullough in total, with a shot traveling back to front and striking him in the head after ricocheting off the seatbelt being the fatal shot. A Pinellas County Sheriff's Office detective assigned to the case further found that the deputies fired a total of fifteen shots at McCullough; Antolini shot nine times and DeLeon six. The detective also determined that all of the shells recovered at the scene were from the deputies' guns and that McCullough was unarmed.

On May 2, 2006, appellee Pearlie McCullough, on behalf of the estate of her grandson Marquell Deontae McCullough, filed this two-count § 1983 civil rights complaint against deputies Antolini and DeLeon, and the Pinellas County Sheriff's Office in the United States District Court for the Middle District of...