Morton v. Kirkwood

• Decision Date: 08 February 2013
• Docket Number: No. 12–11436.,12–11436.
• Citation: 707 F.3d 1276
• Parties: Alex Wayne MORTON, an individual, Plaintiff–Appellee, v. Jeremy KIRKWOOD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

707 F.3d 1276

Alex Wayne MORTON, an individual, Plaintiff–Appellee,

v.Jeremy KIRKWOOD, Defendant–Appellant.

No. 12–11436.

United States Court of Appeals,Eleventh Circuit.

Feb. 8, 2013.

Harvey Bland Morris, Joseph Douglas Aiello, David J. Hodge, Morris, King & Hodge, Huntsville, AL, for Plaintiff–Appellee.

Gary K. Grace, Jennifer Morton Matthews, Grace, Evans & Matthews, Huntsville, AL, for Defendant–Appellant.

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

Before MARCUS and MARTIN, Circuit Judges, and SCRIVEN,^* District Judge.

MARCUS, Circuit Judge:

In this civil rights case, Officer Jeremy Kirkwood of the City of Guntersville Police Department appeals the district court's denial of his motion for summary judgment on the basis of qualified immunity. Kirkwood shot Alex Wayne Morton late at night on January 7, 2010, while Morton was inside his car. The shots paralyzed Morton. According to Kirkwood, he shot Morton after Morton accelerated his car, threatening the life of a nearby police officer. According to Morton, he never accelerated his car, and Kirkwood nonetheless shot him seven times after he put his car in park. Morton sued Kirkwood for damages under 42 U.S.C. § 1983, alleging that Kirkwood used excessive force in violation of the Fourth Amendment. Morton also sued Kirkwood for assault and battery under Alabama's law.

After thorough review, we conclude that Kirkwood is not entitled to qualified immunity. Viewing the evidence in the light most favorable to Morton, as we must at this stage in the proceedings, we conclude that no reasonable police officer would have used deadly force against Morton. Also, clearly established law gave Kirkwood fair notice that his actions, as alleged by Morton, violated the Fourth Amendment. Similarly, accepting Morton's account of the tragic events that led to his grievous injury, state agent immunity does not apply to the assault and battery claim. We, therefore, affirm the district court's denial of summary judgment.

I.

At their depositions, Kirkwood and Morton offered sharply clashing accounts about the shooting. At the summary judgment stage, we must view the evidence in the light most favorable to the non-movant. See Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.2007). We therefore set forth the non-movant's account of the shooting.

Late on January 7, 2010, Morton sat in his car in a park. The night was frigid, so Morton let the car's engine run. He left the car's headlights on too. Morton was speaking to his aunt on his cellphone when he saw a truck enter the park. As the truck neared, Morton recognized it as a police vehicle. ¹ He concluded his telephone conversation and drove away, slowly, letting the car coast. The car moved at its coasting speed, which Morton estimated at about one mile per hour.

Morton was continuing on his way out of the park at coasting speed when he noticed a police officer chasing him. At no time did Morton see anyone in front of his car. Nor did he see Nugent anywhere on the scene. He then heard the police officer shout. Morton said that he immediately shifted his car to park and raised his hands. Kirkwood nonetheless shot at the car; seven bullets struck Morton.² Immediately after the shooting began, Morton scrambled to escape from the car. The car shifted to reverse and traveled in reverse until it bumped into a tree, where it stopped. Morton does not remember how the car got in reverse, but he assumes that he accidently shifted the gear while he tried to escape. It is undisputed, however, that the car shifted to reverse and traveled backward at some point and that it continued backward after the shooting.

The Alabama Bureau of Investigation examined the crime scene and found tire tracks, thirty-four feet in length, visible over fallen leaves, shattered glass thirteen feet from the car's resting place, and cartridge casings spread over a “sixteen foot area parallel to the tracks.”

Morton sued Kirkwood in the U.S. District Court for the Northern District of Alabama alleging that Kirkwood violated his Fourth Amendment rights and also committed assault and battery in violation of state law.³ Kirkwood moved for summary judgment on qualified immunity grounds. The district court denied Kirkwood's motion, and he now appeals.

II.

We review a district court's denial of summary judgment on qualified immunity grounds de novo. Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir.2011). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review all evidence and factual inferences “in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in favor of the non-movant.” Skop, 485 F.3d at 1136 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir.2004)). We review the evidence this way because the “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) (per curiam) (quoting Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). We acknowledge that the “facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case.” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir.2009) (quoting Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002)).

Qualified immunity protects government officials who were sued individually “unless the law preexisting the defendant official's supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant's place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir.2002). “The purpose of qualified immunity is to allow officials to carry out discretionary duties without the chilling fear of personal liability ....” McCullough, 559 F.3d at 1205.

In order to obtain qualified immunity, an official must first establish that he acted within his discretionary authority. Skop, 485 F.3d at 1136. Morton does not dispute that Officer Kirkwood acted within his discretionary capacity when he shot Morton. The qualified immunity analysis thus shifts the burden to Morton, who must show that Kirkwood does not merit qualified immunity. See id. at 1136–37. Qualified immunity does not apply where the facts show that the official violated the plaintiff's constitutional rights and where the law clearly established those rights at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Accepting Morton's testimony as true, we conclude that Kirkwood violated a clearly established constitutional right.

A.

We have little difficulty concluding on this record that, if we accept Morton's account, as we must, Officer Kirkwood violated Morton's Fourth Amendment right to be free from the use of excessive force. “[A]pprehension by the use of deadly force is a seizure ....” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). “In determining the reasonableness of the force applied, we look at the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.” McCullough, 559 F.3d at 1206. In excessive force cases, we are mindful that officers make split-second decisions in tough and tense situations. See Jean–Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.2010).

In deciding whether a police officer used excessive force, we pay “careful attention to the facts and circumstances” of the case, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citing Garner, 471 U.S. at 8–9, 105 S.Ct. 1694). In the deadly force context, we have observed that a police officer may constitutionally use deadly force when the officer

(1) “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others” or “that he has committed a crime involving the infliction or threatened infliction of serious physical harm”; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.

McCullough, 559 F.3d at 1206 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329–30 (11th Cir.2003)). Although these factors are useful, we cannot apply them mechanically, see Penley v. Eslinger, 605 F.3d 843, 849–50 (11th Cir.2010), and “we must still slosh our way through the factbound morass of ‘reasonableness,’ ” Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Here, we easily conclude that Kirkwood violated Morton's constitutional rights.

To begin with, Kirkwood had no probable cause to believe Morton committed any crime, let alone a serious crime involving the infliction or threatened inflictionof serious physical harm. See Garner, 471 U.S. at 11, 105 S.Ct. 1694. Nor did he have...