Mercado v. City of Orlando

• Decision Date: 29 April 2005
• Docket Number: No. 04-13477.,04-13477.
• Parties: Ramon A. MERCADO, Plaintiff-Appellant, v. CITY OF ORLANDO, a municipal corporation and political subdivision of the State of Florida, Ramfis Padilla, Officer, individually and as an agent and employee of the City of Orlando and Orlando Police Department, and Christina Rouse, Officer, individually and as an agent and employee of the City of Orlando and Orlando Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1152

407 F.3d 1152

Ramon A. MERCADO, Plaintiff-Appellant, v. CITY OF ORLANDO, a municipal corporation and political subdivision of the State of Florida, Ramfis Padilla, Officer, individually and as an agent and employee of the City of Orlando and Orlando Police Department, and Christina Rouse, Officer, individually and as an agent and employee of the City of Orlando and Orlando Police Department, Defendants-Appellees.

No. 04-13477.

United States Court of Appeals, Eleventh Circuit.

April 29, 2005.

Frank T. Allen, The Allen Firm, P.A., Orlando, FL, for Plaintiff-Appellant.

Bruce Robert Bogan, Ian D. Forsythe, Hilyard, Bogan, Palmer, P.A., Orlando, FL, for Defendants-Appellees.

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

Before MARCUS, FAY and SILER^*, Circuit Judges.

SILER, Circuit Judge:

Plaintiff Ramon A. Mercado appeals the grant of summary judgment in favor of the defendants City of Orlando ("Orlando"), and police officers Ramfis Padilla and Christina Rouse on his 42 U.S.C. § 1983 claims for the use of excessive force when detaining him and preventing him from committing suicide.¹ For the following reasons, we REVERSE and REMAND on the issue of qualified immunity with respect to Padilla and AFFIRM on all other issues.

I.

In 2002, Mercado and his wife, Ibis, had a heated argument, during which Ibis told Mercado that she wanted to end their marriage and return to Puerto Rico without him. Mercado became despondent, began to cry, and tried to convince her to stay, telling her that he would commit suicide if she left him. To demonstrate his intent, he wrapped a telephone cord around his neck and attached the other end to a ceiling vent. Mercado used a kitchen knife to make multiple cuts on his arms. He then grasped the knife with both hands and pointed it toward his heart.

Ibis called the Orlando Police Department and reported the attempted suicide, and officers were dispatched to her apartment. Rouse and Padilla were among those officers who arrived at Mercado's residence. Ibis told the officers that Mercado was armed with a knife and had threatened to commit suicide. The police attempted to make verbal contact with Mercado for twenty minutes from outside the apartment door. When this attempt was unsuccessful, the officers entered the apartment with Ibis's permission.

Inside, the officers found Mercado sitting on the kitchen floor, crying. He was holding the knife in both hands and pointing it toward his heart. The telephone cord was still wrapped around his neck, but there is no evidence that it was still wrapped around the ceiling vent. The officers identified themselves and ordered Mercado to drop his knife at least two times (once in English and once in Spanish), but he refused without making any threatening moves toward the officers. At no time did the officers warn Mercado that force would be used if he did not drop his weapon.

Fifteen to thirty seconds after giving that order, Padilla followed Rouse's orders to hit Mercado with the Sage SL6 Launcher ("Sage Launcher") and subdue him.² The Sage Launcher is a "less lethal" munition that fires a polyurethane baton that is 1.5 inches wide, travels approximately 240 feet per second, and delivers a force of 154 foot/pounds of energy-approximately the energy of a professionally-thrown baseball. The Sage Launcher was designed to be used to protect persons from self-inflicted injury, especially when using a night stick or baton would be unsafe or impractical. The projectile is not designed to penetrate the body, but only to leave bruises.

From a distance of approximately six feet, Padilla had a clear view and fired the Sage Launcher twice, hitting Mercado once in the head.³ Padilla claims that he was aiming at Mercado's shoulder. The impact fractured Mercado's skull, resulting in brain injuries. He now takes medication to prevent seizures, and he suffers from a host of ailments including headaches, loss of memory, loss of balance, insomnia, dizziness, stuttering, loss of sensation and movement, loss of strength, and sensitivity to light. He is disabled and cannot work.

Padilla was trained on the acceptable uses of the Sage Launcher. He was also aware of Orlando Police Department policies concerning the weapon, specifically, that "[t]argeting the head or neck with the baton or Sage SL6 projectile is acceptable in deadly force situations only." Furthermore, the policy defines "deadly force" as "force that is likely to cause death or great bodily harm." The policies also provide that a crisis negotiation team shall be dispatched when a subject threatens to commit suicide, has the apparent ability to do so, and refuses to surrender.

Shortly after the incident, another officer tested Padilla's Sage Launcher for accuracy. The weapon was in proper working order and was accurate up to a distance of five yards. In her deposition, Rouse testified that the incident did not require deadly force; however, Padilla stated that the situation might have required such force. The defendants' expert testified that deadly force would not be appropriate under these facts and that he would not have purposely aimed the Sage Launcher at Mercado's head.

Mercado sued Padilla and Rouse in both their individual and official capacities, alleging that they used unreasonable force in detaining him, and thus violated his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. He asserted a Monell claim against Orlando, claiming that the city has a policy of using excessive force against its citizens. He also asserted state-law claims against Orlando for negligence in training and supervising Padilla and Rouse.

Later, the defendants filed a motion in limine to prevent, inter alia, the introduction of a statement by Mercado's sister, Limarie Vargas, concerning a conversation with Officer Angel Burgos on the night of the incident. Burgos allegedly told Vargas that Orlando trains its officers to "shoot people in the head," not the body. The district court determined that the statement was inadmissible hearsay.

The district court granted summary judgment to the defendants, stating that the officers did not use excessive force against Mercado and were afforded qualified immunity. It also dismissed the Monell and negligence claims against Orlando for lack of evidentiary support.

II.

We review the district court's grant of summary judgment de novo. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. R. 56(c). When making this determination, we view all facts in the light most favorable to Mercado, the non-moving party. See Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir.2002). Furthermore, we review the district court's grant of a motion in limine for abuse of discretion. Chrysler Intern. Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir.2002).

A. Mercado's Claim Against the Officers for Excessive Force⁴

Mercado can only state a claim under Fourth Amendment against Rouse and Padilla if the officers are not entitled to qualified immunity. "Qualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known." Ferraro, 284 F.3d at 1193-94 (quoting Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir.2001)) (internal quotation marks omitted). Qualified immunity allows government employees to carry out their discretionary duties without fear of litigation, "protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law." Id. at 1194 (citation and internal quotation marks omitted).

In order for the defendants to claim protection for qualified immunity, they must first demonstrate that they were engaged in a discretionary duty. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.2004). Because the defendants were trying to apprehend a potentially suicidal subject, they were clearly engaged in a discretionary capacity. The burden, then, shifts to Mercado to show that qualified immunity is not appropriate by satisfying a two-part inquiry. Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). First, viewing the evidence in the light most favorable to him, he must show that the officers violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If such violation occurred, then we must determine if that right was clearly established at the time of the incident. Id.

1. Whether the Officers Violated Mercado's Constitutional Rights

The Fourth Amendment's freedom from unreasonable searches and seizures includes the right to be free from excessive force during a criminal apprehension. Graham v. Connor, 490 U.S. 386, 394-95 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In determining whether the officers' force was reasonable, we must determine "whether a reasonable officer would believe that this level of force is necessary in the situation at hand." Ferraro, 284 F.3d at 1197 (citation omitted). Under Graham, courts should determine the "objective reasonableness" of a seizure by balancing the "nature and quality of the intrusion" against the "governmental interest at stake." 490 U.S. at 396, 109 S.Ct. 1865. In this case, the intrusion was severe. Mercado was hit in the head by a projectile fired from the Sage Launcher, causing serious brain injury. Although this weapon is classified as a "less lethal" munition, Orlando police regulations recognize that it can be used as a deadly weapon.

When determining the government's interest, we must consider factors that include "the...