Smith v. LePage

• Decision Date: 25 August 2016
• Docket Number: No. 15–11632,15–11632
• Citation: 834 F.3d 1285
• Parties: Estelle Smith, as surviving spouse of Dirk Smith, et al. Plaintiffs–Appellees, Cross–Appellants, v. Richard L. LePage, Jr., individually and in his official capacity as a Dekalb County Police Officer, et al., Defendants–Appellants, Cross–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

834 F.3d 1285

Estelle Smith, as surviving spouse of Dirk Smith, et al. Plaintiffs–Appellees, Cross–Appellants,

v.Richard L. LePage, Jr., individually and in his official capacity as a Dekalb County Police Officer, et al., Defendants–Appellants, Cross–Appellees.

No. 15–11632

United States Court of Appeals, Eleventh Circuit.

Date Filed: August 25, 2016

Lynn Hugh Whatley, Sr., Whatley & Associates, PC, East Point, GA, Mary Katherine Durant, Durant Law, LLC, Tucker, GA, Alfonza Pearl, Law Office of Alfonza Pearl, Atlanta, GA, for Plaintiffs–Appellees–Cross Appellants.

Brenda Ann Raspberry, Laura Karen Johnson, Aaron Ross, DeKalb County Law Department, Decatur, GA, E. Charles Reed, Jr., Freeman Mathis & Gary, LLP, Forest Park, GA, for Defendants–Appellants–Cross Appellees.

Before MARTIN and JORDAN, Circuit Judges, and COOGLER,^* District Judge.

MARTIN

, Circuit Judge:

This case results from a March 2010 encounter between DeKalb County police officers and Dirk Smith at his DeKalb County home. The officers ultimately shot and killed Mr. Smith, and this suit for damages was brought by his surviving wife and children. On the day he was killed, Mr. Smith broke into his own house because he had forgotten his keys when returning from vacation. The babysitter called the DeKalb County Police Department, and responding officers entered the Smith home without a warrant. When the officers found Mr. Smith, he was holding a kitchen knife that he refused to put down, so they tasered him. According to the record here, Mr. Smith dropped the knife, ran into his bathroom, and refused to come out. When he eventually did come out, the officers tasered and then fatally shot him. Mr. Smith's family filed suit under 42 U.S.C. § 1983

and under Georgia law against the county and the police chief, as well as individual officers (collectively, “the officers”).¹

The officers moved for summary judgment, arguing that they are immune from suit. The District Court agreed with the officers as to some of the claims against them, but ruled that the claims related to the shooting must be decided by a jury. Specifically, the court granted summary judgment to the officers on the Smith family's claims that: (1) the officers illegally entered the Smith home; (2) the officers used excessive force by tasing Mr. Smith; and (3) Sergeant Vincent Gamble was liable as a supervisor for the second tasering and the shooting of Mr. Smith. The court denied summary judgment on Mrs. Smith's claims that Officers Ings and LePage used excessive force by fatally shooting Mr. Smith, ruling that the shooting claims must be decided by a jury. Both parties appealed. After careful consideration and with the benefit of oral argument, we affirm.

I.

In March 2010, Mr. Smith and his wife, Estelle Smith, went on vacation. They invited a family friend to stay at their home in Lithonia, Georgia, and babysit their two young children, Kasib and Kahrisma. During the vacation, Mr. and Mrs. Smith had an argument that prompted Mr. Smith to return home early. However, he forgot his keys. Mrs. Smith spoke with her husband while he was traveling, and they agreed he should seek counseling. Mrs. Smith then called the babysitter and instructed him not to let Mr. Smith into the home until Mr. Smith sought counseling.

When Mr. Smith returned home, the babysitter told him what Mrs. Smith had said and did not let him in. Mr. Smith then walked around to the back of the house, where there was a sliding glass door on the ground floor. He started banging on the door in an attempt to break it. When the babysitter saw this, he walked out the front door, leaving Mr. Smith's two children alone in the house.

Mr. Smith eventually broke the back door by throwing a large rock through the glass. The babysitter did not see the door shatter, but heard it. Kasib, Mr. Smith's nine-year-old son, witnessed the door breaking. He then saw his father take a kitchen knife upstairs to jimmy open two bedroom doors that had been locked during the vacation.

Meanwhile, the babysitter was standing outside the Smith home. He called Mrs. Smith and told her what was happening, and she instructed him to call the police. The babysitter called the DeKalb County Police Department and told them several things: (1) that Mr. Smith broke into the house; (2) that Mr. Smith was not supposed to be in the house; (3) that the children were still inside; and (4) that the children were alone in the house when Mr. Smith started trying to break in.

Officers Paul Reynolds and Charles Ings arrived about fifteen minutes later. The babysitter was on the phone with Mrs. Smith when the officers arrived, and he handed the phone to Officer Reynolds. Mrs. Smith said her husband was stressed out and needed somebody to talk to. After the phone call, the officers walked around to the broken back door. They did not have a warrant.

The officers entered the Smith home with their guns drawn and announced themselves. Mr. Smith said he was upstairs and asked them to “hold on.” When Officer Reynolds saw Mr. Smith standing at the top of the stairs, Mr. Smith was holding the kitchen knife down beside his body.

The officers ordered Mr. Smith to drop the knife and come downstairs, but he did not. Instead, Mr. Smith said that he did not trust the police, he was in his own home, and he would put the knife down only if they put their guns down. Mr. Smith continued to move back and forth from the top of the stairs to the middle landing, ignoring the officers' commands to drop the knife. This continued for two to three minutes.

Eventually, Officer Ings fired his taser at Mr. Smith. Mr. Smith screamed, fell down, and then ran into his bathroom.² Kasib, who was watching from his room at the top of the stairs, testified that his father dropped the kitchen knife when he was tasered. Mrs. Smith in turn testified that Kasib told her a police officer then picked the knife up from where it fell.

After the first tasing, the officers took Kasib and Kahrisma outside to wait with the babysitter. Officers Reynolds and Ings informed dispatch that Mr. Smith was “barricaded” inside his bathroom. While he remained barricaded in the bathroom, more officers arrived on the scene and spoke with Mr. Smith. Specifically, Officers Teryl Clements, Richard LePage, and Phillip Lewis joined Officers Reynolds and Ings outside the bathroom, and they all had their guns or tasers drawn. Officer Clements tried to build rapport with Mr. Smith in order to convince him to come out. Mr. Smith tentatively opened and closed the bathroom door several times. He said he did not trust the police and would come out only if they lowered their weapons. Several of the officers said they saw that Mr. Smith still had the knife.

Sergeant Gamble was the last to arrive before the shooting, and he took over negotiating with Mr. Smith. According to Officer Reynolds, Sgt. Gamble said that he “didn't have all day,” the situation “needed to come to a resolution,” and Mr. Smith should “think about his kids.” Eventually, Officer LePage kicked the bathroom door down. Officer LePage and Sgt. Gamble said they saw Mr. Smith still holding the kitchen knife. Sgt. Gamble ordered that Mr. Smith be tased. Officer Clements fired his taser at Mr. Smith, but again it failed to incapacitate him. Mr. Smith briefly retreated into a closet inside the bathroom.

Finally, Mr. Smith left the bathroom, heading toward the hallway that was the only exit from the area. According to the officers, he charged out with the kitchen knife raised and slashing. Officer Ings shot Mr. Smith once in the chest, and Officer LePage shot him twice in the neck and head. Mr. Smith collapsed and died from his injuries soon after. Sgt. Gamble says he removed the kitchen knife from Mr. Smith's hand. The record contains a picture of a kitchen knife on the floor near Mr. Smith's body, though it is by his foot, not his hand.

II.

We review de novo a district court's ruling on summary judgment. Perez v. Suszczynski, 809 F.3d 1213, 1216 (11th Cir. 2016)

. Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A genuine factual issue is one that “properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. at 2511.

To determine whether qualified immunity applies, we conduct a two-step inquiry: (1) do the facts alleged, construed in the light most favorable to the plaintiffs, establish that a constitutional violation occurred; and (2) was the violated constitutional right clearly established.³ Perez, 809 F.3d at 1218

. Under either step, “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). A right may be clearly established by an existing decision of the Supreme Court, this Court, or the state's highest court. Valderrama v. Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015). For a right to be clearly established, “there need not be a case on all fours, with materially identical facts”; rather, there can be “notable factual distinctions” between the precedent and the case before the court. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (quotations omitted). Officials need only have “reasonable warning” that their conduct violated constitutional rights. Id.(quotation omitted).

III.

A. Jurisdiction

At the outset, we must decide whether to exercise pendent appellate jurisdiction over the plaintiffs' claims in their cross-appeal: (1) that the officers illegally entered the Smith home; (2) that the officers used excessive force by deploying their tasers; and (3) that ...