Swofford v. Eslinger, Case No.: 6:08-cv-00066-Orl-35DAB.

• Decision Date: 30 November 2009
• Docket Number: Case No.: 6:08-cv-00066-Orl-35DAB.
• Parties: Robert G. SWOFFORD Jr., an individual, and his wife, Sharon R. Swofford, an individual, Plaintiffs, v. Donald ESLINGER, in his official capacity as the Sheriff of Seminole County, Florida; William Morris Jr., in his individual capacity; and Donald Remus, in his individual capacity, Defendants.
• Court: U.S. District Court — Middle District of Florida

671 F.Supp.2d 1289

Robert G. SWOFFORD Jr., an individual, and his wife, Sharon R. Swofford, an individual, Plaintiffs, v. Donald ESLINGER, in his official capacity as the Sheriff of Seminole County, Florida; William Morris Jr., in his individual capacity; and Donald Remus, in his individual capacity, Defendants.

Case No.: 6:08-cv-00066-Orl-35DAB.

United States District Court, M.D. Florida, Orlando Division.

November 30, 2009.

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Albert F. Tellechea, David A. Jones, Luis Javier Gonzalez, Suzanne E. Gilbert, Amy Robin Rigdon, Kenneth J. Idle, Min Ki Cho, Victoria Heather Mitchell, Holland & Knight, LLP, Orlando, FL, for Plaintiffs.

D. Andrew Debevoise, Erin McCaughey Tueche, Thomas W. Poulton, Jeffrey K. Grant, Debevoise & Poulton, PA, Winter Park, FL, for Defendants.

ORDER

MARY S. SCRIVEN, District Judge.

THIS CAUSE comes before the Court for consideration of the Motion for Summary Judgment, filed by Defendants William Morris Jr. and Donald Remus on March 27, 2009 (Doc. No. 173), and Plaintiffs' Memorandum in Opposition, filed on April 27, 2009 (Doc. No. 188). Defendants Morris and Remus move the Court to declare as a matter of law that Defendants are entitled to immunity from suit on all claims brought by Plaintiffs, pursuant to the doctrine of qualified immunity and Florida Statute § 768.28(9)(a). Upon consideration of all relevant filings and case law and being otherwise fully advised, the Court finds that Defendants' Motion for Summary Judgment (Doc. No. 173) should be GRANTED in part and DENIED in part.

I. Background

A. Case History

This case arises from the shooting of Plaintiff Robert Swofford by Defendants William Morris, Jr. and/or Ronald Remus ("Defendants") during the early morning hours of April 20, 2006. Morris and Remus, Deputies for Seminole County Sheriff's Office ("SCSO"), were pursuing two felony car burglary suspects when Defendants encountered an armed Mr. Swofford on Swofford's property and fired upon him. Donald Eslinger is a third defendant in this case, being sued in his official capacity as the Sheriff of Seminole County, State of Florida. The Amended Complaint, filed by Mr. Swofford and his wife, Sharon Swofford, on May 16, 2008, alleges claims against all Defendants, pursuant to 42 U.S.C. § 1983, for the use of excessive force and unlawful entry onto Swofford's property, in violation of his Fourth Amendment rights, and seeks compensatory and punitive damages, plus interest, costs and attorneys' fees, pursuant to 42 U.S.C. § 1988. The Amended Complaint also alleges, on behalf of Mr. Swofford, state law claims of battery, gross negligence, simple negligence, and negligent training and supervision and, on behalf of Mrs. Swofford, a claim for loss of consortium. (Doc. No. 34.)

On March 27, 2009,¹ Defendants Morris and Remus filed the Motion presently before the Court, contending that they are entitled to immunity from suit on all claims brought by Plaintiffs, pursuant to the doctrine of qualified immunity and Florida Statute § 768.28(9)(a).² (Doc. No. 173.) Accordingly, Defendants Morris and Remus request the Court to enter summary judgment in their favor on Mr. Swofford's federal claims because neither Morris's nor Remus's conduct violated Mr. Swofford's constitutional rights. Alternatively, even if a constitutional violation occurred, Mr. Swofford's rights were not clearly established at the time of the alleged violation. Additionally, Defendants claim they are entitled to summary judgment on Plaintiffs' state law claims because their actions on April 20, 2006, were reasonable. Upon consideration of the disputed and undisputed facts in this case, the Court finds that there are outstanding factual disputes which, at this time, preclude summary judgment in either Morris's or Remus's favor.

B. Facts of Record

Upon consideration of the many disputed facts in this record, most of which are relevant to the dispositive issues underlying the Motion, the Court is unable to decide as a matter of law that Defendants are entitled to qualified immunity. For the sake of clarity in the Court's recitation of the facts and explanation of its decision, the Court recounts separately the undisputed and disputed facts pertinent to the Court's analysis.

1. Undisputed Facts

The following facts are undisputed in this case: During the early morning hours of April 20, 2006, Defendant Remus was on bicycle patrol in the Barrington at Mirror Lake Apartments, located in Seminole County, Florida. (Doc. No. 173 at 3.) The Barrington is located adjacent to Mr. Swofford's residential property, with a six-foot tall wooden privacy fence separating the two properties. (Doc. No. 188 at 2.) Mr. Swofford's property is approximately six to seven acres in size and has three addresses associated with it: 400, 410, and 420 Forest Lake Drive. Mr. Swofford initially lived on one of the parcels of land. After winning the Florida Lottery in 2004 (R. Swofford Dep. 110:13-19, Jan. 9, 2009), Mr. Swofford purchased the lots adjacent to his home to make them one property with one address, 400 Forest Lake Drive. Id. at 136:2-137:2. On April 20, 2006, Mr. Swofford's property contained Swofford's main residential home, a second residential home where an individual sometimes stayed for security purposes,³ a garage area and an open nursery with a black plastic tarp. (Doc. No. 173 at 12.) Swofford's property also contained a tractor-trailer and an unknown number of cars on which Swofford worked. (Doc. No. 188 at 10.)

At approximately 2:28 a.m., Remus observed a car backed into a parking space at the apartment complex with its engine running and its lights off. Id. At the same time, Remus saw two Hispanic males attempting to "hotwire" a second car in the apartment complex parking lot. Id. at 4. When the two Hispanic men (the "Suspects") saw Remus, they ran toward the fence line separating the apartment complex and Swofford's property and then north along the fence. Remus chased the two men on his bicycle, but eventually lost sight of them. Remus assumes the two men jumped the fence, but he could not confirm that they did. "[He] heard the fence rattle and then didn't see them there anymore." (Remus Dep. 223:4-16, Jan. 13, 2009.)

At approximately the same time, 2:25 a.m., Mr. Swofford awoke to his dog barking at the back door. (Doc. No. 188 at 2.) After listening at the back door and not hearing anything, Mr. Swofford took his gun, locked the house, and went outside to inspect his property. Swofford did not put his gun into battery (i.e. load a cartridge into the gun's chamber). After leaving the house, Mr. Swofford went to his garage to check the doors and windows. Next, he walked past the vintage cars he was restoring to a bush where he knelt down to observe his property.

Meanwhile, after losing site of the Suspects, Remus peddled back to the point where he had noted the first car with the engine running. Remus then followed the car as it pulled onto S.R. 436. Remus followed the car for about one mile until another officer was able to follow the car in a police vehicle. Once the second officer began following the car, Remus turned off of S.R. 436 and headed south on Forest Lake Drive to see if he could find the Suspects. Not finding them, Remus returned back to the apartment complex.

Defendant Morris was on duty with his K-9, "Strike," near the intersection of 17-92 and Maitland Boulevard when he heard radio traffic regarding Remus's pursuit of the Suspects. (Doc. No. 173 at 5.) At least eleven minutes elapsed between the time Remus lost sight of the Suspects, and Morris arrived at the apartment complex. (Doc. No. 188 at 3.) Morris parked his car on the street, close to the fence, and removed Strike from the vehicle. Morris was not in a hurry and did not know where the two Suspects were. Id. When Remus was asked whether he believed the two Suspects were in the "fenced-in property," Remus responded, "I don't know. The fenced-in area? I wouldn't say that. I would say they were in the area." (Remus Dep. 159:3-7, Jan. 13, 2009.)

Remus gave Morris a description of the two Hispanic, male Suspects (Morris Dep. 82:24-83:3, Dec. 15, 2008), but Remus did not tell Morris that he had patrolled Mr. Swofford's property previously or that Mr. Swofford's property contained a residence. (Id. at 111:16-112:2; Remus Dep. 121:1-23, Jan. 13, 2009.). Per Mr. Swofford's prior request that SCSO patrol his property indefinitely, due to prior criminal activity, Remus had patrolled the property eleven times prior to the events on April 20, 2006, including one patrol that occurred less than three hours before the shooting of Mr. Swofford. (Doc. No. 173 at 7; Doc. No. 188 at 11.) Mr. Swofford had also told the SCSO that he and his property caretakers routinely patrol the property armed. (Doc. No. 188 at 11.)

At the same time that Morris arrived and was assessing the state of the "investigation" with Remus, other deputies began to arrive to set-up a perimeter to contain the Suspects. (Doc. No. 173 at 5.) A perimeter is used to "bed down" or surround suspects, so that they cannot escape the relevant area. (Remus Dep. 163:22-25, Jan. 13, 2009.) Remus asked for a perimeter, but neither Remus nor Morris determined for certain that a perimeter was set before they commenced their search.⁴ (Doc. No. 173 at 5; Doc. No. 188 at 3.) Additionally, the police helicopter, "Alert," radioed that it was four minutes away from the scene. (Doc. No. 188 at 3.) Alert had both full spectrum and infrared capabilities to search area. Id. at 14. Morris and Remus decided not to await the arrival of the helicopter unit before continuing their "search." (Doc. No. 184, Exh. 2 at 5:75.)

After more than eleven minutes had passed since Remus lost sight of the two Suspects (Doc. No. 184, Exh. 2 at 1:8, 5:81),⁵ Morris and Remus began to search for them. (Doc. No. 173 at 6.)...