Riley v. Newton

• Decision Date: 11 September 1996
• Docket Number: No. 95-8873,95-8873
• Citation: 94 F.3d 632
• Parties: Fanny M. RILEY, as Administratrix of the Estate of Ralph E. Lowe, deceased; Fanny M. Riley, as next friend for the children of the deceased, Ralph E. Lowe, as the next of kin under the laws of the State of Georgia, Plaintiffs-Appellants-Cross-Appellees, v. Patrick NEWTON, individually and in his official capacity as a de facto officer with the Richmond County Sheriff's Department, and in his official capacity as a de facto officer with the U.S. Military Drug Suppression Team, Defendant-Appellee, Department of the Army, Defendant, Richmond County, Georgia; Charles Webster, individually and in his official capacity as the Sheriff of Richmond County, Georgia, Defendants-Appellees-Cross-Appellants, Kenneth J. Glisson, individually and in his official capacity as an officer with the Richmond County Sheriff's Department, Defendant-Appellee, Dave Padron; Tim Padron; Steve Green; United States of America, Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 632

94 F.3d 632

Fanny M. RILEY, as Administratrix of the Estate of Ralph E.

Lowe, deceased; Fanny M. Riley, as next friend for the

children of the deceased, Ralph E. Lowe, as the next of kin

under the laws of the State of Georgia, Plaintiffs-Appellants-Cross-Appellees, v. Patrick NEWTON, individually and in his official capacity as

a de facto officer with the Richmond County Sheriff's

Department, and in his official capacity as a de facto

officer with the U.S. Military Drug Suppression Team,

Defendant-Appellee,

Department of the Army, Defendant,

Richmond County, Georgia; Charles Webster, individually and

in his official capacity as the Sheriff of

Richmond County, Georgia,

Defendants-Appellees-Cross-Appellants,

Kenneth J. Glisson, individually and in his official

capacity as an officer with the Richmond County

Sheriff's Department, Defendant-Appellee,

Dave Padron; Tim Padron; Steve Green; United States of

America, Defendants.

No. 95-8873.

United States Court of Appeals, Eleventh Circuit.

Sept. 11, 1996.

John P. Batson, Augusta, GA, for appellants.

James W. Ellison, Lori S. D'Alessio, Burnside, Wall, Daniel, Ellison & Revell, Augusta, GA, for appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER ^*, District Judge.

SCHWARZER, Senior District Judge:

Ralph Lowe was accidentally shot and killed while being arrested by Patrick Newton, a military policeman, who was accompanying Richmond County Inspector Kenneth Glisson on patrol. Lowe's estate and his surviving children allege claims under 42 U.S.C. § 1983 (1988) against Glisson, Richmond County Sheriff Charles Webster, and the County. Claims against the United States and other participants in the events that led to Lowe's death have been resolved and are not before us.

The section 1983 claims allege that Lowe was seized without probable cause and subjected to excessive force in violation of the First, Fourth, Fourteenth, and Thirteenth Amendments. The district court granted Glisson's motion for summary judgment, as well as Webster's, limited to his individual capacity; it denied the County's motion and Webster's motion in his official capacity. Plaintiffs appeal from the order granting Glisson's motion, and the County and the Sheriff, pursuant to leave granted by this court, cross-appeal from the denial of their motions. We have jurisdiction under 28 U.S.C. § 1291 and affirm the summary judgment for Glisson and for Sheriff Webster in his individual capacity. We reverse the order denying summary judgment for Richmond County and for Sheriff Webster in his official capacity and remand with directions to enter judgment for all defendants.

STANDARD OF REVIEW

We review the granting or denial of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving parties. Swint v. City of Wadley, Alabama, 51 F.3d 988, 992 (11th Cir.1995); Bolt v. Halifax Hosp. Medical Center, 980 F.2d 1381, 1384 (11th Cir.1993). If a genuine issue of material fact exists, summary judgment must be denied. Hutcherson v. Progressive Corp., 984 F.2d 1152, 1155 (11th Cir.1993).

FACTS

On the evening of September 2, 1989, as Inspector Glisson prepared to depart on his regular patrol, he received a call from Sgt. David Padron, an investigator on the Drug Suppression Team (DST) at Ft. Gordon, a nearby Army installation. Padron asked to ride with Glisson to check out local hotels for military personnel. Padron asked Glisson if his brother, who was visiting him, could ride along. Glisson agreed so long as the brother remained in the vehicle, did not carry a weapon, and would be Padron's responsibility. When Glisson met Padron and his brother that night at the sheriff's substation, SPC. Patrick Newton was also there. A former member of the DST, he was assigned to the military police at Ft. Gordon and worked as a confidential source for the DST. He came along to point out individuals whom he had earlier observed dealing drugs.

Ft. Gordon is a large Army installation in Richmond County. To deal with the proliferation of drugs, the military police at Ft. Gordon formed the DST to investigate drug use and trafficking among military personnel. The DST and personnel of the Richmond County Sheriff's Department cooperated informally in particular criminal matters touching on off-base activities involving military personnel. Padron and Newton rode with Glisson from time to time when engaged in drug investigations. Glisson was aware that the team members' authority was limited to assisting in investigations having a military connection and did not extend to investigations or making of arrests in the civilian community.

That evening, Glisson was dispatched to the Barton Village area of Augusta to respond to a complaint of a loud party. Barton Village was known to be one of the most dangerous areas in the city due to extensive drug trafficking and violence. On arrival at Barton Village, Glisson spoke to the person throwing the party and resolved the complaint without trouble. As he resumed his patrol at about 10:30 or 11:00 p.m., he observed a white male in a pickup truck driving through Barton Village. The truck stopped at a corner and the driver began to speak with a black male standing at the corner. After a few seconds, the black male got into the vehicle with the white male. Glisson recognized this incident as typical of a street-corner drug deal, a scenario he had seen repeatedly. He decided to make an investigatory stop. As he turned on his blue lights, the truck pulled over to the curb and stopped. When Glisson and the others got out of the car, however, the truck sped away. Glisson and Newton jumped back into the car and Glisson gave chase. He cut in front of the truck, forcing it to stop.

Glisson then exited the car and, with his revolver drawn, approached the truck on the driver's side. He repeatedly instructed the driver (later identified as Steven Green) to turn off the ignition and show his hands but the driver did not comply. When he reached the truck, Glisson opened the door, reached in and pulled the driver out, and placed him on the ground. At this point, Padron came up and handed him handcuffs which he snapped on Green.

Glisson then returned to his car to turn off the siren and call for a transport unit. As he passed the window on the truck, he observed that Newton was straddling the passenger (later identified as Ralph Lowe, plaintiffs' deceased) on the ground while attempting to handcuff him. Glisson saw them struggling; Lowe had one hand handcuffed and the other free. As he moved toward his car, he heard a shot. He then heard the man on the ground say "You shot me." Newton turned to Glisson and said, "He hit my gun and it went off." Glisson then returned to his car and called for an ambulance and for Maj. Ronnie Strength of the Sheriff's Department.

INSPECTOR GLISSON'S INDIVIDUAL LIABILITY

Excessive Force. While the district court opinion, and much of the discussion in the parties' briefs, focuses on the legality of the initial and subsequent stops, the crucial issue is whether Glisson can be held liable for Newton's seizure of and use of force on Lowe for which plaintiffs seek relief. The district court granted summary judgment on all claims challenging the legality of the two stops of Green's truck. We need not address the issues relating to the stops, however, because they are not relevant to Glisson's liability for Newton's acts.

Plaintiffs concede that Newton acted "without any explicit direction from Glisson." (P. Br. 16.) But they argue (apparently for the first time on appeal) that Glisson "was either idly standing by or failed to supervise Newton." Id. This court has held that "an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his nonfeasance." Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir.1995). Plaintiffs have come forward with no facts from which a jury could find that Glisson failed to take reasonable steps to protect Lowe from excessive force. The undisputed facts establish that Glisson was engaged in making the arrest of Green while Newton, on his own, was dealing with Lowe. They were on opposite sides of the truck. When he saw Newton struggling with Lowe, Glisson observed no use of excessive force which might have given rise to a duty to intervene to stop it, nor did he have an indication of the prospective use of excessive force--none occurred until Newton's weapon fired. Because Glisson had no reason to expect the use of excessive force until after it had occurred, he had no reasonable opportunity to protect Lowe, and the obligation to take steps to protect him never arose. See O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir.1988) ("The three blows were struck in such rapid succession that Conners had no realistic opportunity to attempt to prevent them. This was not an episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist the victim became a tacit collaborator.")

The Posse Comitatus Act. Plaintiffs' principal contention is that Glisson and the other defendants violated the Posse Comitatus Act. That Act provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, wilfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. § 1385 (1988).

The district court held that Glisson was entitled to qualified immunity on this claim and we agree. "Qualified immunity protects government officials performing discretionary functions from civil trials ... and from liability if their conduct violates no 'clearly established statutory or constitutional rights of...