Peatross v. City of Memphis

• Decision Date: 29 March 2016
• Docket Number: No. 15–5288.,15–5288.
• Parties: Scott B. PEATROSS, Administrator ad Litem for the Estate of Anjustine A. Hunter Vanterpool, Plaintiff–Appellee, v. CITY OF MEMPHIS, et al., Defendants, Toney Armstrong, in his individual capacity, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

818 F.3d 233

Scott B. PEATROSS, Administrator ad Litem for the Estate of Anjustine A. Hunter Vanterpool, Plaintiff–Appellee,

v. CITY OF MEMPHIS, et al., Defendants,Toney Armstrong, in his individual capacity, Defendant–Appellant.

No. 15–5288.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 9, 2015.

Decided and Filed: March 29, 2016.

ARGUED:Elijah Noel, Jr., Harris Shelton Hanover Walsh, PLLC, Memphis, Tennessee, for Appellant. Andrew C. Clarke, Law Offices of Andrew C. Clarke, Memphis, Tennessee, for Appellee. ON BRIEF:Elijah Noel, Jr., Harris Shelton Hanover Walsh, PLLC, Memphis, Tennessee, for Appellant. Andrew C. Clarke, Law Offices of Andrew C. Clarke, Memphis, Tennessee, Danese K. Banks, The Cochran Firm, Memphis, Tennessee, for Appellee.

Before: KEITH, CLAY, and WHITE, Circuit Judges.

OPINION

DAMON J. KEITH

, Circuit Judge.

This civil rights action arose from the shooting death of Anjustine A. Hunter Vanterpool ("Vanterpool"). Vanterpool was killed after Officers Joel Dunaway ("Officer Dunaway") and Steve McMillen ("Officer McMillen") of the Memphis Police Department ("MPD" or "Department") fired seven shots into the front and rear windows of the vehicle Vanterpool was operating. Alleging various constitutional violations, Vanterpool's estate ("Estate" or "Plaintiff") sued, among others,

Toney Armstrong ("Armstrong"), Director of the MPD, pursuant to 42 U.S.C. § 1983

. Asserting the defense of qualified immunity, Armstrong moved to dismiss the claim against him in his individual capacity. The district court denied the motion, concluding that Armstrong was not entitled to qualified immunity. Armstrong timely appealed. For the following reasons, we AFFIRM.

I. BACKGROUND

Facts Alleged in the Complaint

The Estate alleges the following relevant facts in its Complaint. On April 23, 2013, Officers Dunaway and McMillen were on duty working for the MPD. At 6:36 p.m., the Officers were at the Northside Market and Grocery store ("Northside Market"). Vanterpool, a black male, pulled up to the gas pumps at this location, driving a purple 1993 Chevrolet Caprice. Officer McMillen was then contacted by Officer Sir Crease Brooks ("Officer Brooks"). Officer Brooks advised Officer McMillen that a purple Chevrolet was pulling up and that he wanted Officer Dunaway to call him.

Vanterpool entered the Northside Market to purchase gas and other items and returned to his vehicle at approximately 6:38 p.m. He attempted to pump gas into his vehicle, but the gas pump was not turned on. He went to the back door of the Northside Market at approximately 6:39 p.m. and informed the store clerk that the pump was not turned on. He returned to his vehicle and began pumping gas.

Officer Dunaway exited the Northside Market at approximately 6:40 p.m. and made a call on his cellular phone looking towards the gas pumps. Officer Dunaway was allegedly on the telephone with Officer Brooks. Officer Brooks advised him that the purple Chevrolet that was at the gas pumps was the same vehicle he had seen the day before with expired tags. Officer Brooks further stated that when he ran the tag number through dispatch, it was noted that the tags were not registered to that vehicle. Officer Brooks also said that the man driving the vehicle was the same man he had seen driving it the day before.¹ Officer Brooks had followed the man to a store under the guise that he was going to the restroom, but instead he waited to talk to him about the vehicle. Officer Brooks, however, had lost sight of the man and the vehicle sometime thereafter.

Officer McMillen exited the Northside Market at approximately 6:40 p.m. He stood near Officer Dunaway as Officer Dunaway was on the phone with Officer Brooks. At approximately 6:41 p.m., Vanterpool finished pumping his gas. Seconds later, Officer Dunaway, while still talking on his cellular phone, walked towards Vanterpool's vehicle. Officer McMillen followed.

Vanterpool walked around the vehicle to get back in the vehicle a few seconds later. Immediately thereafter, Officer Dunaway, while still on his cellular phone, approached Vanterpool's vehicle. Officer McMillen did the same. Vanterpool began to drive away. However, Officer McMillen positioned himself in front of Vanterpool's vehicle with his gun drawn and pointed it at Vanterpool in an effort to seize him. Thereafter, Officer McMillen "either lunged or jumped towards or on the hood of" Vanterpool's vehicle with his gun drawn. At the time, neither Officer McMillen nor Officer Dunaway had observed Vanterpool commit any felony or misdemeanor.

Officers Dunaway and McMillen then fired into the driver's side front and back windows of Vanterpool's vehicle. Vanterpool's vehicle traveled a short distance and came to a stop across the street from the Northside Market. By the time the vehicle stopped, a total of seven (7) shots had been fired into Vanterpool's vehicle. Officers Dunaway and McMillen then holstered their guns, and Officer Dunaway began talking on his shoulder radio. The Officers then crossed the street toward the area where the vehicle had come to rest.

Officer Dunaway approached the passenger side of Vanterpool's vehicle and attempted to open the door. Officer McMillen stood towards the back of the vehicle on the driver's side. Vanterpool died as a result of the shooting. His estate filed a lawsuit pursuant to 42 U.S.C. § 1983

against Officers McMillen, Dunaway, and various other members of the MPD—including the director of the MPD, Defendant Armstrong. The Estate alleges that Officers Dunaway and McMillen violated Vanterpool's right to be free from unreasonable seizure pursuant to the Fourth Amendment of the United States Constitution.

The Estate alleges that Armstrong personally condoned, encouraged, approved, or at least implicitly authorized the conduct of Officers Dunaway and McMillen; personally failed to properly hire, train, supervise, monitor, and discipline officers of the MPD, including Officers Dunaway and McMillen; showed deliberate indifference to Vanterpool's rights; and consciously disregarded the known and foreseeable consequences of failing to correct deficiencies in the Department.

The Estate further alleges that there is a direct causal link between the deficient policies and customs of the Department and the violation of Vanterpool's constitutional rights. As a direct result of Armstrong's policy, practice, or customs, Vanterpool's constitutional rights were allegedly violated, and he was killed.

According to the Complaint, from 2009 to 2013, there had been fifty-four (54) officer shootings. From April 2012 to April 23, 2013—the day Vanterpool was killed—eighteen (18) people had been shot and/or killed at the hands of the MPD. In 2012, Director Armstrong "acknowledged a dire need to review and improve the police department's operations." Armstrong "noted that the MPD needed to improve its disciplinary process as well as the policies and procedures in line with the best law enforcement practices[;]" however, no improvements were made. In September 2012, "Mayor A.C. Wharton publicly admonished Director Armstrong and described the MPD as ‘unacceptable’ and in need of outside scrutiny to analyze its shortcomings in recruitment, accountability, and training in ethical standards."

The Estate further alleges that Armstrong "created a custom and pattern of [sic] practice of exonerating [ ] officers who use excessive force[.]" In so doing, Armstrong "allowed Memphis police officers to believe that they may violate the civil rights of its citizens as long as they allege that they thought the victim had a weapon or could pose some theoretical danger at a later time."

The shooting death of Memphis Police Officer Martoiya Lang in December 2012 fostered a "heightened" sense of alert among officers in the Memphis area. However, no additional training was given to the officers, and soon thereafter, a number of police-related shootings occurred in Memphis. A "common theme" in each shooting situation included the officers alleging that the individual pointed a gun at them or had a deadly weapon. The MPD failed to investigate any of these claims thoroughly, and in most instances, accepted the word of the officers. Officers Dunaway and McMillen had been involved in two separate incidents involving the use of excessive force prior to the killing of Vanterpool.

The Estate alleges that Armstrong essentially allowed the officers to "do whatever they want, whenever they want, to whomever they want, irrespective of the United States Constitution." Armstrong was involved at least in part in creating and enforcing all department policies; he did not punish officer misconduct, including the use of excessive force; he failed to take action in the face of the growing use of excessive force by officers and admonishment from the Mayor on the issue; and he "rubber stamped" officer misconduct.

Armstrong filed a motion to dismiss the supervisory liability claim against him in his individual capacity, asserting qualified immunity. The district court denied the motion, concluding that the Complaint alleged facts supporting that Armstrong "at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." The court also concluded that the Complaint adequately alleged facts supporting that Vanterpool's constitutional rights were violated and that the right was clearly established at the time. Armstrong timely filed this interlocutory appeal.

II. DISCUSSION

A. Appellate Jurisdiction

Ordinarily, 28 U.S.C. § 1291

bars our review of interlocutory appeals—appeals of orders short of final judgment. See 28 U.S.C. § 1291. However, under the collateral-order doctrine "a limited set of district-court orders are reviewable" even though they are "short of final judgment." Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[A] district court's order rejecting qualified immunity at the motion-to-dismiss stage of the...