Priester v. City of Riviera Beach Florida, 98-5227

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation208 F.3d 919
Docket NumberNo. 98-5227,98-5227
Parties(11th Cir. 2000) WILLIE PRIESTER, Plaintiff-Appellant, Cross-Appellee, v. CITY OF RIVIERA BEACH, FLORIDA, JERRY PEREBA, JOE DOE, Police Sergeant, W. CUSHING, Sergeant, Defendants-Appellees, J. A. WHEELER, Officer, Defendant-Appellee-Cross-Appellant
Decision Date04 April 2000

Before EDMONDSON and BARKETT, Circuit Judges, and COHILL*, Senior District Judge.

EDMONDSON, Circuit Judge:

This appeal is chiefly about qualified immunity and the deference due the implicit fact findings contained in a jury verdict.

After he was bitten by a police dog, Plaintiff filed suit against two Riviera Beach Police Officers, Sergeant William Cushing and Officer James Wheeler, alleging many claims under both state and federal law. Only two of Plaintiff's claims were submitted to the jury: (1) a claim against Defendant Wheeler under 42 U.S.C. § 1983 alleging that Wheeler used excessive force against Plaintiff in violation of the Fourth Amendment to the United States Constitution and (2) an identical claim against Defendant Cushing. The jury returned a verdict in favor of Plaintiff and awarded him $5,000 in compensatory damages payable jointly and severally by Cushing and Wheeler, $10,000 in punitive damages against Cushing, and $10,000 in punitive damages against Wheeler.

Defendants moved for judgment as a matter of law and, in the alternative, for a new trial. The district court denied Defendants' motion for a new trial, denied Defendant Wheeler's motion for judgment as a matter of law, and granted Defendant Cushing's motion for judgment as a matter of law. Both sides appealed. We affirm the district court's judgment, except that we vacate the grant of Defendant Cushing's renewed motion for judgment as a matter of law.

BACKGROUND

Just before midnight on 22 February 1994, Defendant Cushing responded to a burglar alarm at a store in Riviera Beach, Florida. Upon arrival, Sergeant Cushing saw that the store had been burglarized and saw footprints leading away from the store. Cushing called for a canine unit to track the scent.

Defendant Wheeler and his dog responded to Cushing's call.1 The dog, who was at the end of Wheeler's 12-foot leash, began following the scent into the woods. Cushing and Wheeler followed. About twenty minutes later, the dog led the officers to a canal where Plaintiff was hiding.2

Plaintiff, at trial, testified that he was not involved with the burglary of the store but instead was looking for a pay phone after his car broke down. Two men standing by a bridge over a canal offered him a beer. Plaintiff and the two men began to walk along the canal to drink their beer out of public view. When the two men saw the police officers approaching, they ran away. Because he was on parole and had been drinking, Plaintiff hid from the police in the bottom of the canal.

Plaintiff testified that Officer Wheeler and the dog did not see him initially. They stepped over and walked past him while he was lying in the canal. When Sergeant Cushing shined his light on Plaintiff and asked Wheeler: "What's this down here, a golf bag?," Plaintiff voluntarily stood up, said nothing, and put his hands in the air. Wheeler then told Plaintiff to lie down on the ground. Plaintiff asked why. Wheeler said that Plaintiff should either lie down or Wheeler would release the dog on him. Plaintiff did lie down, but then Wheeler ordered the dog to attack him anyway. When Plaintiff kicked the dog to stop the dog from biting him, Wheeler let go of the dog's leash, drew his gun, pointed it at Plaintiff's head and said: "You kick him again, I will blow your mother fucking brains out." Although Plaintiff was begging that the dog be called off, both Defendants stood and watched "for an eternity" while the dog continued to attack and to bite Plaintiff on both legs.

Plaintiff then testified that the dog's bites resulted in a total of fourteen puncture wounds on both of his legs. Plaintiff showed his legs to the jury and pointed out the individual puncture wounds that he said he received as a result of the incident.

The jury believed Plaintiff and found that Cushing and Wheeler were liable for using excessive force.

DISCUSSION
A. Judgment as a Matter of Law - Sufficiency of the Evidence
1. Defendant Wheeler

Wheeler argues that he was entitled to judgment as a matter of law on Plaintiff's excessive force claim. We disagree.

To be entitled to judgment as a matter of law, Wheeler must show that Plaintiff failed to produce substantial evidence such that a reasonable jury could find that the amount of force used to arrest Plaintiff was unreasonable and thus a violation of the Fourth Amendment's prohibition on the use of excessive force by law enforcement officers. See Graham v. Connor, 109 S.Ct. 1865, 1871 (1989)("[A]ll claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard[.]"). Whether the amount of force used was reasonable is determined objectively "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and requires "careful attention to the facts and circumstances of each particular 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." Id. at 1872.

The evidence in this case presented the case as one of black or white: one side's version must be absolutely false and the other side's version must be absolutely true. Plaintiff's testimony was directly contradictory to Defendants' testimony about what happened. On Plaintiff's version of the facts, a reasonable jury could conclude that Wheeler used an objectively unreasonable amount of force and violated Plaintiff's Fourth Amendment rights. Therefore, the denial of Wheeler's motion for judgment as a matter of law was not error.

2. Defendant Cushing

We next address whether the district court erred in granting Sergeant Cushing's motion for judgment as a matter of law. As the district court correctly noted, Plaintiff presented no evidence that Sergeant Cushing ordered or otherwise actively participated in Wheeler's use of excessive force. Therefore, Cushing's liability arises, if at all, from his failure to intervene.

We have previously said that an officer can be liable for failing to intervene when another officer uses excessive force. See Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998) ("[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable[.]"); see also Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42 (11th Cir. 1985). This liability, however, only arises when the officer is in a position to intervene and fails to do so. See Ensley, 142 F.3d at 1407 ("[F]or an officer to be liable for failing to stop police brutality, the officer must be in a position to intervene[.]").

As applied to this case, Cushing was only entitled to judgment as a matter of law if he showed that Plaintiff failed to present substantial evidence that would allow a reasonable jury to find that Defendant Cushing had the opportunity to intervene in Wheeler's use of excessive force and that Cushing failed to do so.

In reaching the conclusion that Cushing was entitled to judgment as a matter of law, it appears that the district court mistakenly relied upon Defendants' version of the facts, rather than Plaintiff's version of the facts, as it was required to do. The district court said "[the dog] bit Priester once or twice" and "both Cushing and Wheeler immediately commanded Priester to put his hands up and stop resisting the police dog so that the dog could release his hold." But, it was Defendants' testimony -- not Plaintiff's -- that the dog only bit Plaintiff once or twice. And, it was Defendants' testimony -- not Plaintiff's -- that, when the dog bit Plaintiff, they immediately commanded Plaintiff to put his hands up and stop resisting.

The district court also said that "the events happened very quickly." But, Plaintiff testified that the dog attacked him for "more than an eternity." And, although Wheeler testified that the incident may have lasted for only 5 or 10 seconds, Sergeant Cushing admitted on cross-examination that the dog's attack on Plaintiff may have lasted as long as two minutes. Two minutes was long enough for a reasonable jury to conclude that Sergeant Cushing had time to intervene and to order Wheeler to restrain the dog. And, because Cushing stood on top of the canal with his flashlight on the scene and watched the entire event and was in voice contact with Wheeler, this case is distinguishable from those cases where an officer who failed to intervene was found not liable because he did not observe the violation or have the opportunity to intervene. E.g., Ensley, 142 F.3d at 1407-08; Riley, 94 F.3d at 635. The grant of judgment as a matter of law for Defendant Cushing was error.

B. Judgment as a Matter of Law - Qualified Immunity
1. Standard of Review

Defendants next argue that they are entitled to judgment as a matter of law based on qualified immunity grounds. We disagree.

Qualified immunity protects government officials performing discretionary functions "from liability for civil damages insofar as their conduct does not violate clearly established...

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