Tillis v. Brown

• Decision Date: 07 September 2021
• Docket Number: No. 19-15098,19-15098
• Citation: 12 F.4th 1291
• Parties: Hunter TILLIS, Nancy Sorrells, as grandmother, legal custodian and administratrix of the estate of C.R. ON BEHALF OF Minor Child, Hannah WUENSCHEL, Plaintiffs-Appellees-Cross Appellants, v. Allan H. BROWN, Jr., in his official and individual capacities, Consolidated Government of Columbus, Georgia, Defendants-Appellants-Cross Appellees, Ricky Boren, in his official and individual capacities, Defendant-Cross Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

12 F.4th 1291

Hunter TILLIS, Nancy Sorrells, as grandmother, legal custodian and administratrix of the estate of C.R. ON BEHALF OF Minor Child, Hannah WUENSCHEL, Plaintiffs-Appellees-Cross Appellants,

v. Allan H. BROWN, Jr., in his official and individual capacities, Consolidated Government of Columbus, Georgia, Defendants-Appellants-Cross Appellees,Ricky Boren, in his official and individual capacities, Defendant-Cross Appellee.

No. 19-15098

United States Court of Appeals, Eleventh Circuit.

September 7, 2021

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether a police officer, after a high-speed chase, reasonably used deadly force when he stepped out of his vehicle to make an arrest and the suspect's nearby car suddenly went into reverse. Christian Redwine led officers from the Columbus Police Department on a high-speed chase across state lines before crashing into bushes on the side of a road. The driver of the lead police vehicle, Officer Allan H. Brown Jr., stopped behind and to the right of Redwine's car. Seconds after Officer Brown stepped out to make an arrest, the car's reverse lights turned on, and the car started backing up. Officer Brown fired 11 shots through the back windshield and side windows as the car passed near him. Then he changed magazines and fired another 10 shots. Redwine was killed, and his two passengers were injured. The surviving passengers and Redwine's grandmother sued Officer Brown for allegedly using excessive force during the encounter, as well as the police chief and the county for supervisory liability. Officer Brown moved for summary judgment based on qualified immunity. The district court granted the motion for Officer Brown as to the first round of shots but denied it as to the second. Because Officer Brown acted reasonably in firing both rounds of shots, we affirm in part, and we reverse in part and render a judgment in favor of Officer Brown, the police chief, and the county.

I. BACKGROUND

Christian Redwine lived with Nancy Sorrells—his custodial grandmother—and Fred Levins in Columbus, Georgia. Levins was a car salesman and kept several vehicles at his home. One of these vehicles was a Pontiac G6.

On the night of November 5, 2016, Redwine was at his home with his cousin, Hunter Tillis, his friend, Hannah Wuenschel, and Wuenschel's infant son. Sometime after Levins went to sleep, Redwine, Tillis, and Wuenschel left Wuenschel's baby at the house and drove away with the Pontiac so that Redwine could speak with his girlfriend. When they were unable to find his girlfriend at her home, they decided to drive around town looking for her. Redwine drove, Wuenschel sat in the front passenger's seat, and Tillis sat in the driver's-side back seat.

Levins woke up at about 1 a.m. on November 6 and realized that his Pontiac was missing, as were Redwine, Tillis, and Wuenschel. At 3:34 a.m., he called 911 and reported that his Pontiac had been taken. The police called him back a few minutes later to ask if he knew who was responsible, and he said it was his grandson, his grandson's cousin, and another girl who had left her baby at his home "for three solid hours." Levins also told the police that his grandson was 17, that he had been in jail three times in the last year, and that he "just got out." Finally, he told the police that he wanted the three individuals who had taken his Pontiac "in jail."

About an hour later, an unmarked police vehicle spotted the Pontiac and began following it. As soon as the police vehicle turned on its blue lights, the Pontiac sped off. As Tillis testified, "the blue lights lit up, and as soon as they lit up, Christian smashed the gas." Wuenschel testified that "he just slammed it back and we went." Other police vehicles joined the chase and pursued the Pontiac through commercial and residential areas of Columbus, including when the car drove the wrong way down a one-way street. At one point, the police lost sight of the Pontiac. But as soon as they spotted it parked on the side of the road, it drove off and headed toward the Alabama border. Tillis testified that Redwine was "driving ... crazy" "at a high rate of speed," he "bl[ew] through a couple of stop signs," and "he had to lock the brakes up every time he came to an intersection just to turn." Tillis also testified that Redwine "was just panicking," "[h]e didn't know what to do," and "[h]e was saying he didn't want to go back to jail." In her testimony, Wuenschel described how she was "screaming" and "crying" because Redwine "was going way too fast" and she was afraid that the Pontiac was going to "wreck[ ]" or to "hit somebody else."

As the chase continued into Phenix City, Alabama, Officer Allan Brown took over as the lead police vehicle. He called in regular updates to the 911 dispatcher and reported that the Pontiac was driving at speeds up to 107 miles per hour. The dash camera video from his police cruiser shows the Pontiac veering between lanes and running at least one red light.

The Pontiac exited the highway at about 70 miles per hour and crashed into bushes on the side of the road. By that time, the chase had lasted 13 minutes and 40 seconds and had covered 14.6 miles. Officer Brown reported that the Pontiac was "wrecked out" and "spinning," and he told the dispatcher to "[s]tart a rescue." He parked his vehicle behind and to the right of the Pontiac, at an angle to the right rear bumper, and stepped out to make an arrest.

Seconds after Officer Brown got out of his vehicle, the Pontiac's reverse lights turned on. Officer Brown began shooting at the Pontiac with his service pistol and continued doing so as the Pontiac drove past him in reverse. He fired a total of 11 shots—the chambered round plus a 10-round magazine—through the back windshield and the rear and front passenger windows. All 11 of the shots were fired as the Pontiac was going in reverse. It rolled across the road and came to a stop. Its engine continued to run and its headlights remained on as Officer Brown faced it. Officer Brown changed magazines and fired another 10 shots at the front of the Pontiac.

About three seconds elapsed during the first round of 11 shots, six seconds elapsed between the two rounds of shots, and another three to four seconds elapsed during the second round of 10 shots. All of the shots in both rounds were fired in fewer than 13 seconds. Tillis and Wuenschel got out of the Pontiac and onto the ground, and Officer Brown held them at gunpoint until backup arrived. Officer Brown reported to the dispatcher that shots had been fired and that the Pontiac had "tried to run [him] over." Redwine died from his gunshot wounds, and Tillis and Wuenschel were both injured.

Sorrells, acting as administratrix of Redwine's estate, Tillis, and Wuenschel, each brought separate actions against Officer Brown, the Columbus Police Department, Police Chief Ricky Boren, and the Consolidated Government of Columbus, which Georgia treats as a county for purposes of tort liability. See Bowen v. Columbus , 256 Ga. 462, 349 S.E.2d 740, 741, 743 (1986). They alleged that Officer Brown's unreasonable seizure and excessive use of force violated their rights under the Fourth and Fourteenth Amendments. 42 U.S.C. § 1983. They also alleged that Chief Boren, the county, and the police department were liable for supervising Brown and for having customs, policies, and practices that contributed to the violations of their rights. Id. Finally, they brought numerous state-law claims, including excessive use of force, unlawful seizure, and assault and battery. The district court consolidated the three actions. See Fed. R. Civ. P. 42. And the parties agreed to dismiss the Columbus Police Department as a defendant.

Officer Brown, Chief Boren, and the county moved for summary judgment. The district court granted only partial summary judgment. It first addressed the federal individual-capacity claims against Officer Brown, and it divided those claims in three groups: the pre-shooting pursuit, the first round of shots, and the second round of shots. It ruled that Tillis, Wuenschel, and Sorrells failed to establish a substantive-due-process violation during the pre-shooting pursuit. As to the first round of shots, it concluded that Officer Brown did not violate the Fourth Amendment because he could have reasonably believed that the Pontiac was attempting to hit him when it backed up. But it denied Officer Brown qualified immunity as to the second round of shots on the ground that no reasonable officer would have concluded that the Pontiac posed an imminent threat of serious physical harm to himself or to others when he fired his gun.

The district court then turned to the federal claims against Chief Boren and the county. It ruled that because Officer Brown committed no constitutional violations as to the pre-shooting pursuit or to the first round of shots, both Chief Boren and the county were entitled to summary judgment as to those claims. As for the second round of shots, it ruled that Chief Boren was not personally involved in the pursuit and shooting, did not direct Officer Brown to act unlawfully, did not have a "policy or custom that resulted in Brown's deliberate indifference to [the] [p]laintiffs’ constitutional rights," and did not know Officer Brown would use excessive force and fail to stop him from doing so. So it concluded that he was entitled to summary judgment as to the second round of shots as well. But it denied the county summary judgment as to the second round of shots because the county's motion "relied primarily on [the] contention that Brown committed no constitutional violations." The district court ruled that it would permit discovery on the "narrow issue" whether the county had a policy, practice, or custom—implemented through an official other than Chief Boren—that contributed to Officer Brown's alleged constitutional violation when he fired the second round of shots.

Finally, the district court addressed the state...