Cottrell v. Caldwell , 85 F.3d 1480 ( 1996 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 94-6845
________________________
D.C. Docket No. CV-92-A-1584-N
JACK COTTRELL, Reverend, as Administrator
of the Estate of Leroy Bush Wilson,
Plaintiff-Appellee,
versus
CYNTHIA D. CALDWELL, individually and in
her official capacity as a City of Montgomery
Police Officer; S. E. WILSON, Corporal,
individually and in his official capacity
as a City of Montgomery Police Officer;
EUGENE S. KEMPLIN, individually and in his
official capacity as a City of Montgomery
Police Officer; SPENCER T. HENDERSON, II,
individually and in his official capacity
as a City of Montgomery Police Officer,
Defendants-Appellants,
THE CITY OF MONTGOMERY, a municipal
corporation; THE CHIEF OF POLICE, City
of Montgomery, in his official capacity,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 3, 1996)
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge.*
*
Senior Circuit Judge Frank M. Johnson heard argument in this
case but did not participate in this decision. This decision is
rendered by quorum. 28 U.S.C. § 46(d).
CARNES, Circuit Judge:
This case arises out of the death of Leroy Bush Wilson from
positional asphyxia as he was being transported in the back of a
police car after his arrest. Reverend Jack Cottrell, the
administrator of the decedent's estate, filed suit under 42 U.S.C.
§ 1983 alleging that four police officers who arrested or
transported Wilson, the police department, and the City of
Montgomery had violated his constitutional rights. The district
court denied the defendant police officers' qualified immunity
summary judgment motion, and the officers brought this
interlocutory appeal from that denial. We reverse.
I. THE INTERLOCUTORY JURISDICTION ISSUE
In light of Johnson v. Jones, 115 S. Ct. 2151 (1995), we deem
it prudent to examine our jurisdiction to decide this interlocutory
appeal. We begin with certain general principles involving
interlocutory jurisdiction in qualified immunity cases. In this
context, we use the term "interlocutory jurisdiction" to refer to
interlocutory appellate jurisdiction pursuant to the Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949),
doctrine, as applied to qualified immunity cases in Mitchell v.
Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985). That jurisdiction
exists independently of the final judgment rule exceptions
contained in 28 U.S.C. § 1292 and Fed. R. Civ. P. 54(b).
We have no interlocutory jurisdiction to review the grant of
summary judgment to a defendant on qualified immunity grounds.
2
Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 158 (11th
Cir. 1995). Whether we have interlocutory jurisdiction to review
the denial of summary judgment on qualified immunity grounds
depends on the type of issues involved in the appeal.
One type of issue for these purposes is evidentiary
sufficiency: whether the district court erred in determining that
there was an issue of fact for trial about the defendant's actions
or inactions which, if they occurred, would violate clearly
established law. An example is the situation in Johnson v. Jones,
115 S. Ct. at 2153-54, where the defendant police officers sought
to appeal interlocutorily the district court's determination that
there was sufficient evidence from which the trier of fact could
find that the defendant officers participated in beating the
plaintiff after he was arrested, or stood by and allowed others to
beat him. We know from Johnson v. Jones that we do not have
interlocutory jurisdiction to review the denial of summary judgment
where the only issues appealed are evidentiary sufficiency issues.
115 S. Ct. at 2156; see also Dolihite v. Maughon By and Through
Videon, 74 F.3d 1027, 1033 n.3 (11th Cir. 1996); Johnson v.
Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996), petition for cert.
filed, 64 U.S.L.W. 3742 (U.S. Apr. 25, 1996) (No. 95-1743).
Legal issues underlying qualified immunity decisions are a
different matter. An example of such an issue is "whether the
legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions or, . . . whether
the law clearly proscribed the actions the defendant claims he
3
took." Mitchell v. Forsyth, 472 U.S. at 528, 105 S. Ct. at 2816.
In the Mitchell case itself the specific legal issue was whether
the defendant's actions in authorizing, as Attorney General, a
warrantless national security wiretap were proscribed by clearly
established law when those actions occurred in November of 1970.
Id. at 530, 105 S. Ct. at 2817-18. We know from Mitchell, which
Johnson left intact, that we have interlocutory jurisdiction over
legal issues that are the basis for a denial of summary judgment on
qualified immunity grounds. See Dolihite, 74 F.3d at 1034 n.3;
Clifton, 74 F.3d at 1091; Haney v. City of Cumming, 69 F.3d 1098,
1101 (11th Cir. 1995), cert. denied, ___ S. Ct. ___, 64 U.S.L.W.
3669 (U.S., May 20, 1996) (No. 95-1527); McElroy v. City of Macon,
68 F.3d 437, 438 n.* (11th Cir. 1995). Recently, this Court has
referred to such legal issues as "core qualified immunity" issues.
Clifton, 74 F.3d at 1091; Dolihite, 74 F.3d at 1034 n.3.
The Supreme Court's decision in Behrens v. Pelletier, 116 S.
Ct. 834 (1996), earlier this year, made it clear that interlocutory
appellate jurisdiction over the legal issues involved in a
qualified immunity question exists even where the district court
denied the summary judgment "motion with the unadorned statement
that '[m]aterial issues of fact remain as to [the defendant] on the
[federal question] claim.'" 116 S. Ct. at 838 (second and third
alterations added). The Court inBehrens specifically rejected the
contention that a district court's holding that material issues of
fact remain bars interlocutory appellate review of related issues
of law, labelling that contention a misreading of Johnson. Id. at
4
842. As the Court explained, " Johnson held, simply, that
determinations of evidentiary sufficiency at summary judgment are
not immediately appealable merely because they happen to arise in
a qualified-immunity case;" but "Johnson reaffirmed that summary-
judgment determinations are appealable when they resolve a dispute
concerning an abstract issue of law relating to qualified immunity
-- typically, the issue whether the federal right allegedly
infringed was clearly established." Id. (citations, internal
quotation marks, and brackets omitted). The contrary holdings in
Mastroianni v. Bowers, 74 F.3d 236, 238 (11th Cir. 1996), and Babb
v. Lake City Community College, 66 F.3d 270, 272 (11th Cir. 1995),
preceded Behrens and cannot be reconciled with it. Where prior
panel precedent conflicts with a subsequent Supreme Court decision,
we follow the Supreme Court decision. E.g., Lufkin v. McCallum,
956 F.2d 1104, 1107 (11th Cir. 1992) ("A panel of this Court may
decline to follow a decision of a prior panel if such action is
necessary in order to give full effect to an intervening decision
of the Supreme Court of the United States."), cert. denied, 506
U.S. 917, 113 S. Ct. 326 (1992).
Accordingly, under Johnson, we lack interlocutory appellate
jurisdiction over the denial of summary judgment on qualified
immunity grounds where the sole issues on appeal are issues of
evidentiary sufficiency. However, as clarified byBehrens, Johnson
does not affect our interlocutory jurisdiction in qualified
immunity cases where the denial is based even in part on a disputed
issue of law.
5
In Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793
(1991), the Court explained that "[a] necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is 'clearly established' at the time the defendant acted
is the determination of whether the plaintiff has asserted a
violation of a constitutional right at all." That issue, too, is
a legal one and therefore subject to interlocutory review.1
The present case involves two legal claims against the
defendant officers arising out of the same facts. The first
alleges that they violated the Fourteenth Amendment due process
right of Leroy Wilson not to be subjected to conditions of custody
and confinement creating an unreasonable danger to his safety and
life. The district court denied the defendant officers' motion for
summary judgment on qualified immunity grounds as to that claim
based upon its application of an " either gross negligence or
deliberate indifference" standard. (Emphasis added.) In reviewing
whether that denial was error, we must of necessity decide whether
the legal standard upon which the denial was based is the correct
one, and that is an issue of law. Accordingly, we have
1
Our discussion of the types of issues for purposes of our
interlocutory jurisdiction is not meant to be exhaustive. For
example, when the claim is that a search and seizure or arrest
violated the Fourth Amendment, qualified immunity depends upon
whether arguable probable cause existed. More specifically, the
qualified immunity issue in such cases is not whether probable
cause existed, but whether a reasonable officer possessing the
information the defendant officer possessed could have believed it
did. E.g., Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534,
537 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct.
3034, 3040 (1987); Swint v. City of Wadley, Ala., 51 F.3d 988, 996
(11th Cir. 1995). That is a core qualified immunity issue.
6
interlocutory jurisdiction over the appeal from the denial of
summary judgment as to the first claim.
Plaintiff's second claim is that the defendant officers used
excessive force to arrest him, in violation of the Fourth
Amendment. The district court declined to rule on the defendants'
motion for qualified immunity summary judgment as to that claim,
stating only that in view of its rejection of the defense as to the
due process claim "prudence dictates" that it also reject the
defense as to the Fourth Amendment claim. The issue of whether
that is a proper basis for denying summary judgment, and the
related issue of whether summary judgment should have been granted
on qualified immunity grounds based upon the facts of this case are
issues of law. Accordingly, we have interlocutory jurisdiction
over the appeal from the denial of summary judgment as to the
second claim.
II. APPELLATE REVIEW OF EVIDENTIARY
ISSUES RELATING TO QUALIFIED
IMMUNITY IN THE POST-JOHNSON ERA
When it decides whether defendants are entitled to summary
judgment, a district court draws the facts from the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," Fed. R. Civ. P. 56(c),
construing the evidence from those sources in the light most
favorable to the plaintiff. See, e.g., Forbus v. Sears Roebuck &
Co., 30 F.3d 1402, 1403 n.1 (11th Cir. 1994), cert. denied, 115 S.
7
Ct. 906 (1995); Akin v. PAFEC Ltd., 991 F.2d 1550, 1553 n.1 (11th
Cir. 1993).
Having done that, the district court in this case set out in
its order denying summary judgment the "facts" upon which that
denial was based. As this Court has noted, what is considered to
be the "facts" at the summary judgment stage may not turn out to be
the actual facts if the case goes to trial, but those are the facts
at this stage of the proceeding for summary judgment purposes.
See, e.g., Swint, 51 F.3d at 992; Rodgers v. Horsley, 39 F.3d 308,
309 (11th Cir. 1994); Kelly v. Curtis, 21 F.3d 1544, 1546 (11th
Cir. 1994).
A. The Court of Appeals' Role In Regard
to the Determination of the Facts
When It Reviews the Denial of a
Motion for Summary Judgment on
Qualified Immunity Grounds
When a court of appeals interlocutorily reviews a legal issue
involved in a denial of summary judgment on qualified immunity
grounds, a question that arises in the wake of Johnson v. Jones is
what role, if any, the appellate court has in determining the facts
for summary judgment purposes. In the past, we have reviewed the
district court's evidentiary sufficiency determinations de novo,
undertaking to examine the record and decide for ourselves what the
facts are at this stage. See Rogers v. Miller , 57 F.3d 986, 988
(11th Cir. 1995); Swint, 51 F.3d at 992; Rodgers, 39 F.3d at 309.
The Supreme Court's Johnson decision raised some doubt about the
correctness of that approach, but that doubt has been resolved in
8
recent decisions of this Court. In both Clifton, 74 F.3d at 1091,
and Dolihite, 74 F.3d at 1034-35 n.3, this Court held that the
Supreme Court's Johnson v. Jones decision did not affect this
Court's authority to decide, in the course of deciding the
interlocutory appeal, those evidentiary sufficiency issues that are
part and parcel of the core qualified immunity issues, i.e., the
legal issues.2 Our Clifton and Dolihite holdings in this respect
are consistent with the Supreme Court's opinion in Behrens, 116 S.
Ct. at 842.
In exercising our interlocutory review jurisdiction in
qualified immunity cases, we are not required to make our own
determination of the facts for summary judgment purposes; we have
discretion to accept the district court's findings, if they are
adequate.3 See Johnson v. Jones, 115 S. Ct. at 2159 ("the court of
appeals can simply take, as given, the facts that the district
court assumed when it denied summary judgment"); Dolihite, 74 F.3d
at 1035 n.3. But we are not required to accept them. In this
case, we will accept the district court's evidentiary sufficiency
findings, i.e., its factfindings for present purposes, as far as
2
To the extent, if any, that Heggs v. Grant, 73 F.3d 317 (11th
Cir. 1996), implies to the contrary, the implication is only
dictum. In that case, the parties were "in full agreement that the
events described" in the opinion "accurately portray what happened"
and, thus, the decision was based upon "undisputed facts." Id. at
320.
3
In determining the facts for summary judgment purposes, we,
like the district court, are required to view the evidence in the
light most favorable to the plaintiff. When that is done, a pure
issue of law is created.
9
they go, supplementing them with additional evidentiary sufficiency
findings of our own from the record where necessary.
B. The Right of a Defendant Denied
Summary Judgment on Qualified
Immunity Grounds to Have the Facts
Determined at Trial and Evidentiary
Sufficiency Issues Reviewed on
Appeal After Final Judgment
Before recounting the facts the district court distilled from
the summary judgment record, we think it appropriate to make a few
additional observations about public officials and employees' right
to appellate review of evidentiary sufficiency questions underlying
their qualified immunity defenses. The Supreme Court's Johnson
decision applies only to interlocutory review, not to appellate
review following final judgment. As we have stated previously:
a defendant who does not win summary judgment
on qualified immunity grounds may yet prevail
on those grounds at or after trial on a motion
for a judgment as a matter of law. See Adams
v. St. Lucie County Sheriff's Dep't, 962 F.2d
1563, 1579 n.8 (11th Cir. 1992) (Edmondson,
J., dissenting) (dictum); id., at 1567 n.2
(non-majority opinion of Hatchett, J.)
(dictum), rev'd per curiam on other grounds,
998 F.2d 923, 923 (11th Cir. 1993) (en banc).
Moreover, a district court can, "when needed,
... use special verdicts or written
interrogatories to the jury to resolve
disputed facts before the judge rules on the
qualified-immunity question." Id.; accord
Stone v. Peacock, 968 F.2d 1163, 1166 (11th
Cir. 1992) (per curiam) (dictum). What we
decide in this interlocutory appeal is only
whether the district court should have granted
summary judgment on qualified immunity
grounds.
Kelly, 21 F.3d at 1546-47 (footnote omitted); accord Bendiburg v.
Dempsey, 19 F.3d 557, 561 (11th Cir. 1994).
10
In cases where defendants are entitled to qualified immunity,
it is imperative that they receive the benefits of that defense
prior to trial through Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P.
12(c), or Fed. R. Civ. P. 56(c). That imperative results from the
nature of the entitlement to qualified immunity. "The entitlement
is an immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial." Mitchell v. Forsyth, 472
U.S. at 526, 105 S. Ct. at 2815; accord Behrens, 116 S. Ct. at 839("Harlow and Mitchell make clear that the defense is meant to give
government officials a right, not merely to avoid standing trial,
but also to avoid the burdens of such pretrial matters as discovery
...." (internal quotation marks omitted)); Johnson, 115 S. Ct. at
2158 (the very policy militating in favor of immediate appeals from
the denial of qualified immunity motions is to protect public
officials from lawsuits); Anderson v. Creighton, 483 U.S. 635, 646
n.6, 107 S. Ct. 3034, 3042 n.6 (1987) (Because "[o]ne of the
purposes of the Harlow qualified immunity standard is to protect
public officials from the 'broad-ranging discovery' that can be
'peculiarly disruptive of effective government'...we have
emphasized that qualified immunity questions should be resolved at
the earliest possible stage of a litigation."); Ansley v. Heinrich,
925 F.2d 1339, 1346-47 (11th Cir. 1991).4
4
Not only is a defendant entitled to interlocutorily appeal
the denial of his qualified immunity defense when he asserts it in
a Rule 12(b)(6) motion, or in a Rule 56 motion for summary
judgment, he is entitled to interlocutorily appeal denial of both
such motions even where it results in two pretrial appeal
11
Where the defendant's pretrial motions are denied because
there are genuine issues of fact that are determinative of the
qualified immunity issue, special jury interrogatories may be used
to resolve those factual issues. See Stone v. Peacock, 968 F.2d
1163, 1166 (11th Cir. 1992); Bendiburg v. Dempsey, 19 F.3d at 561.
Because a public official who is put to trial is entitled to have
the true facts underlying his qualified immunity defense decided,
a timely request for jury interrogatories directed toward such
factual issues should be granted. Denial of such a request would
be error, because it would deprive the defendant who is forced to
trial of his right to have the factual issues underlying his
defense decided by the jury.
We do not mean to imply, of course, that district courts
should submit the issue of whether a defendant is entitled to
qualified immunity to the jury. Qualified immunity is a legal
issue to be decided by the court, and the jury interrogatories
should not even mention the term. Bendiburg v. Dempsey, 19 F.3d at
561; Stone v. Peacock, 968 F.2d at 1165-66; Ansley v. Heinrich, 925
F.2d at 1348. Instead, the jury interrogatories should be
restricted to the who-what-when-where-why type of historical fact
issues.
When a district court has denied the qualified immunity
defense prior to trial based upon its determination that the
defense turns upon a genuine issue of material fact, the court
should revisit that factual issue when, and if, the defendant files
proceedings in a single lawsuit. Behrens, 116 S. Ct. at 839.
12
a timely Fed. R. Civ. P. 50(a) or (b) motion. The party who
receives an adverse ruling on such a motion is free to seek
appellate review of that ruling in the usual manner following final
judgment. The effect of Johnson v. Jones on the power of appellate
courts to review pure evidentiary sufficiency rulings relating to
qualified immunity is confined to interlocutory appeals.
III. THE FACTS IN THIS CASE
In this part, we quote from the district court's memorandum
opinion and order denying defendant's motion for summary judgment,
those facts which it found from the summary judgment record and
relied upon to deny the summary judgment on qualified immunity
grounds, as well as on the merits.5
"On December 27, 1990, Caldwell and Wilson were dispatched to
2721 Second Street in Montgomery, Alabama to respond to a call on
the 911 emergency phone number. Upon arriving at that address,
they were met by Ella Ree Cottrell, who advised them that the
decedent, her grandson, had a history of psychological problems;
that he had stopped taking his medication which suppressed those
problems; and that he needed to be taken to a hospital. After an
incident occurred inside the residence, the officers placed the
decedent under arrest. A struggle then ensued and Caldwell and
Wilson called for assistance."
5
We directly quote the full substantive text of these
factfindings, but omit the district court's record citations.
13
"Shortly thereafter, Kemplin, Henderson and other police
officers arrived. After a struggle of twenty minutes, the decedent
was subdued and placed in handcuffs and leg restraints. The
defendants then placed the decedent in a police car with his feet
on the rear seat and his head in the space between the front and
rear seats. In this position, the decedent was unable to
adequately inhale oxygen and because of the handcuffs and leg
restraints could not reposition himself."
"Thereafter, Caldwell drove the police car back to the police
station and Wilson sat in the rear seat with the decedent. During
this period, the decedent died of 'positional asphyxiation.'"
After stating the facts quoted above, the district court
discussed some legal rules and principles of law, and then stated
as follows:
"In the instant case, Cottrell presents two pieces of evidence
from which the court concludes that a genuine issue of material
fact exists as to whether or not the individual officers acted with
either gross negligence or deliberate indifference."
"First, Cottrell offers the affidavit of James J. Fyfe
('Fyfe'), an expert in police practices and procedures. Fyfe
maintains that: (1) 'it was well known by police on the day of Mr.
Wilson's death improper restraint of arrested persons, particularly
those on medication and/or who have engaged in strenuous activity,
could quickly cause death by asphyxiation'; (2) 'police
administrators throughout the United States have formulated clear
policies and training designed to assure that officers transport
14
prisoners safely'; (3) '[g]enerally accepted United States police
custom and practice dictates that arrested persons whose hands and
legs have been restrained be transported in police patrol cars only
if they can be seated in normal positions and secured to their
seats by seat belts or lap restraints'; (4) '[i]f [an] arrested
person whose hands and legs have been restrained are too violent or
active to be transported while normally seated in police patrol
cars, generally accepted United States police custom and practice
dictates that they be transported in ambulances or specially
designed vehicles'; (5) '[g]enerally accepted United States police
custom and practice also dictates that, no matter how they may be
restrained, arresting officers constantly monitor the health and
well-being of persons in their custody'; (6) police officers'
training 'should include recognition of signs that such persons are
not breathing or suffocating, as well as appropriate response to
such emergencies'; (7) the officers who arrested Mr. Wilson
committed gross violations of the prevailing standards and caused
his unnecessary death; (8) the affidavits of Caldwell, Henderson,
Kemplin, Wilson, and Deputy Chief Mallory indicate that the
officers have not received proper training."
"Next, Cottrell offers copies of the transcripts and reports
of the Alabama Bureau of Investigation's ('ABI') interviews of
Caldwell, Henderson and Ms. Daisy Presley ('Presley').4"
____________________
"4Presley is a neighbor of the decedent and his grandmother."
15
"During her interview, Caldwell recalled statements by the
decedent's grandmother, at the time she arrived on the scene, that
indicated to her and Wilson that the decedent had a mental problem
and was taking medication. Her interview reveals that a twenty-
five minute struggle occurred between the officers and the decedent
and that it took six officers to handcuff him. Caldwell also
stated that during the struggle the decedent struck her and Wilson
and that Wilson struck the decedent. With regards to transporting
the decedent, she stated that she drove the vehicle and Wilson sat
in the back with the decedent; the decedent was in handcuffs and
leg restraints, lying face down on the floorboard; and that Wilson
and the decedent did not communicate between the time they placed
the decedent in the vehicle and the time that they realized there
was a problem.5"
____________________
"5The drive from the decedent's home to the police station
lasted approximately five minutes."
"During his interview, Henderson emphasized that the decedent
was 'really strong' and 'three grown men couldn't hold this man
down.' He stated that during the struggle the decedent was
'breathing pretty hard.' Henderson also recalled that he kept
asking out loud 'what [the decedent] was on or what's wrong with
him.'6 He noted that 'I can't stress enough that through my mind
the whole time struggling with him and wrestling with a person you
can get tired real quick and I know we had been out there with him
at least 10 [minutes].'7"
16
____________________
"6With regards to his questioning the decedent's condition,
Henderson further recalled that 'I was pushing his leg real hard
and it didn't phase him one bit, it's like nobody's doing a thing
to him. ... They drug him out of the house cause he wouldn't stand
up and he just had a weird look on his face, I mean he just
wouldn't respond to nothing like a normal person would.'"
"7Henderson previously stated that the other officers were
with the decedent for at least twenty minutes before he arrived."
"Finally, the ABI report of Presley's interview indicates that
she stated that: (1) she observed police officers drag the
decedent out of his home; (2) he appeared 'limp', and (3) when
officers placed him on the pavement his face went down on the
pavement and he did not attempt to move his face."
IV. ANALYSIS
A. The Mistreatment in Custody Claim
We think that in view of the circumstances of this case, the
proper analytical approach to reviewing the denial of summary
judgment as to the custodial mistreatment claim is the one the
Supreme Court followed in Siegert v. Gilley, 500 U.S. 226, 111 S.
Ct. 1789 (1991), an interlocutory appeal decision which held that
the district court's denial of the defendant's motion for summary
judgment on qualified immunity grounds was due to be reversed. The
Supreme Court reached that conclusion by going straight to the
merits and holding that the plaintiff "not only failed to allege
the violation of a constitutional right that was clearly
established at the time of Gilley's actions, but he failed to
establish the violation of any constitutional right at all." 500
17
U.S. at 233, 111 S. Ct. at 1794. Where the absence of merit in the
plaintiff's case can be readily determined at the interlocutory
appeal stage, the Siegert analytical approach makes sense, because
"[a] necessary concomitant to the determination of whether the
constitutional right is 'clearly established' at the time the
defendant acted is the determination of whether the plaintiff has
asserted a violation of a constitutional right at all." 500 U.S.
at 232, 111 S. Ct. at 1793.
Although we have not considered the Siegert approach
mandatory, see Spivey v. Elliott, 41 F.3d 1497, 1498 (11th Cir.
1995), we have followed it on occasion, see, e.g., Wooten v.
Campbell, 49 F.3d 696, 699 (11th Cir.), cert. denied, 116 S. Ct.
379 (1995); Burrell v. Board of Trustees of Ga. Military College,
970 F.2d 785, 792 (11th Cir. 1992), cert. denied, 507 U.S. 1018,
113 S. Ct. 1814 (1993). In Burrell, for example, we reversed a
denial of summary judgment on qualified immunity grounds insofar as
it involved an alleged conspiracy to violate the plaintiff's First
Amendment right to freedom of speech. Id. at 792-93. Our
reasoning was that:
Assuming, without deciding, that Baugh and
Goldstein would have violated a clearly
established constitutional right by conspiring
with Baggarly to have Burrell fired for
speaking out against GMC, the record does not
contain inferable facts that could support a
finding that either Baugh or Goldstein in any
way conspired with Baggarly to discharge her
for her public criticism of GMC. Without a
conspiracy, there obviously is no
constitutional violation. Without a
constitutional violation, there can be no
violation of a clearly established
constitutional right. See Oladeinde v. City
18
of Birmingham, 963 F.2d 1481, 1485 (11th
Cir.1992) (citing Siegert v. Gilley, 500 U.S.
226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d
277 (1991)).
We will follow the Siegert approach here, just as we did in
Burrell, but instead of examining the record ourselves as we did in
Burrell, we will begin with the facts found by the district court
and supplement them only where necessary to determine if summary
judgment should have been granted after proper application of the
law to the facts.
Claims involving the mistreatment of arrestees or pretrial
detainees in custody are governed by the Fourteenth Amendment's Due
Process Clause instead of the Eighth Amendment's Cruel and Unusual
Punishment Clause, which applies to such claims by convicted
prisoners. E.g., Bell v. Wolfish, 441 U.S. 520, 535 & n.16, 99 S.
Ct. 1861, 1872 & n.16 (1970); Hale v. Tallapoosa County, 50 F.3d
1579, 1582 n.4 (11th Cir. 1995); Jordan v. Doe, 38 F.3d 1559, 1564-
65 (11th Cir. 1994). However, the applicable standard is the same,
so decisional law involving prison inmates applies equally to cases
involving arrestees or pretrial detainees. E.g., Jordan, 38 F.3d
at 1564-65 (citing Hamm v. Dekalb County, 774 F.2d 1567, 1574 (11th
Cir. 1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1492 (1986)).
Finding no evidence that the defendant officers intended that
Leroy Wilson, the arrestee, be asphyxiated, the district court read
the due process claim as one alleging deliberate indifference and
proceeded to analyze it on that basis. Actually, the district
court applied to the evidence a standard of "either gross
negligence or deliberate indifference" (emphasis added), a standard
19
it drew from language in Owens v. City of Atlanta, 780 F.2d 1564,
1567 (11th Cir. 1986). The "gross negligence" language in the
Owens opinion is dictum, because the evidence in that case showed
at most simple negligence, which would have been insufficient to
state a valid due process claim regardless of whether the standard
was deliberate indifference, or was either gross negligence or
deliberate indifference. In any event, the Supreme Court's recent
decision in Farmer v. Brennan, 114 S. Ct. 1970 (1994), which was
released after this case left the district court, makes it clear
that "gross negligence" is not part of the standard for judging
custody mistreatment claims under the Due Process Clause.
In Farmer, the Court began with the proposition that the
mistreatment standard is "'deliberate indifference' to a
substantial risk of serious harm," id. at 1974, and then proceeded
to define the standard which has both an objective component and a
subjective component. Id. at 1977. To satisfy the objective
component, the plaintiff must show a deprivation that is,
"objectively, sufficiently serious," which means that the
defendants' actions resulted "in the denial of the minimal
civilized measure of life's necessities." Id. (internal quotation
marks omitted).
Even when that objective component is established, an in
custody mistreatment claim still fails unless the plaintiff
establishes that the defendant had a "'sufficiently culpable state
of mind.'" Id. That requisite "state of mind is one of deliberate
indifference to inmate health or safety." Id. (internal quotation
20
marks omitted). It is a state of mind "lying somewhere between the
poles of negligence at one end and purpose or knowledge at the
other." Id. at 1978. It is "the equivalent of recklessly
disregarding" a substantial risk of serious harm to the inmate.
Id. The Court in Farmer squarely rejected the plaintiff's
invitation to adopt a purely objective test for deliberate
indifference, holding instead that there could be no liability
"unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference." Id. at
1979. There is no liability for "an official's failure to
alleviate a significant risk that he should have perceived but did
not ...." Id.Applying Farmer to the facts found by the district court in
this case, it is apparent that summary judgment should have been
granted on the in custody mistreatment claim. The district court
did not find that either defendant knew of and disregarded an
excessive risk that Leroy Wilson would suffocate after he was
placed in the back seat of the police car and before it arrived at
the station five minutes later; the court did not find that either
defendant drew from the facts known to that defendant the inference
that a substantial risk of harm existed.
Because Farmer was released after the district court issued
its order and findings, we have examined the record carefully to
determine if there is any genuine issue of material fact as to the
21
subjective intent element prescribed in Farmer. Cf. Johnson, 115
S. Ct. at 2159 (where a district court has not stated the facts
upon which its decision to deny summary judgment is based, a court
of appeals may have to review the record to determine what facts
the district court likely assumed). The record contains no
evidence that either defendant officer knew of and consciously
disregarded the risk that Charles Wilson would suffocate in the
back seat of the police car. As the district court's findings
indicate, there is evidence, in the form of an affidavit from
plaintiff's expert, that most police officers around the country
receive training designed to assure safe transportation of
prisoners, and that such training should include recognition of
signs of suffocation. However, the district court found that the
officer defendants in this case had not received such training
("the affidavits ...indicate that the officers have not received
proper training.").
The affidavit of plaintiff's expert also states, in conclusory
terms, that "it was well known by police on the day of Mr. Wilson's
death improper restraint of arrested persons, particularly those on
medication and/or who have engaged in strenuous activity, could
quickly cause death by asphyxiation." Such a conclusory statement
about police in general is not evidence about the mental state of
these defendant officers in particular. The same is true of the
statements in the expert's affidavit that these officers' conduct
violated "[g]enerally accepted United States police custom and
practice" in several ways. Farmer requires a great deal more of
22
the plaintiff than a showing that the defendants violated generally
accepted customs and practices.
Because there is no evidence in the summary judgment record
sufficient to support a jury finding that the defendant officers
were consciously aware of and disregarded the risk that Mr. Wilson
would suffocate, plaintiff has failed to show a violation of due
process, and it necessarily follows that the defendants are
entitled to summary judgment on qualified immunity grounds. See
Siegert, 500 U.S. at 232, 111 S. Ct. at 1793. We are confident
that the district court would have reached that conclusion, and
ruled differently than it did, if the Farmer decision had been
available to it.
B. The Excessive Force Claim
The district court disposed of the defendants' motion for
summary judgment on the Fourth Amendment excessive force claim in
a footnote, simply stating that because of its decision to deny
summary judgment as to the Due Process claim, "prudence dictates
that it also denied defendants' motion for summary judgment on
[plaintiff's] Fourth Amendment claim. Defendants are given leave
to raise this issue again at the time of trial." When their motion
for summary judgment on qualified immunity grounds is denied,
defendants are not required to have leave of court in order to
raise the defense again at trial. See supra pp. 10 - 13. To the
extent that the district court's language could be interpreted as
declining to rule on the qualified immunity issue until trial, its
23
action had the same effect, for our interlocutory jurisdiction
purposes, as a complete denial. See, e.g., Collins v. School Bd.
of Dade County, Fla., 981 F.2d 1203, 1205 (11th Cir. 1993). To the
extent that the district court's reasoning is based, as its
language seemingly indicates, upon its decision to deny the motion
for summary judgment as to the due process claim, then it is
erroneous because the court's reasoning on the due process claim is
itself erroneous, for the reasons we have previously discussed.
In any event, the two claims involve different legal
standards. The proper standard for judging Fourth Amendment
excessive force claims is set out in Graham v. Connor, 490 U.S.
386, 109 S. Ct. 1865 (1989). That standard is one of objective
reasonableness: "the question is whether the officers' actions are
'objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation." 490 U.S. at 397, 109 S. Ct. at 1872. The district
court's detailed factfindings concerning the events surrounding the
arrest and the force applied make it clear that there is no genuine
issue of material fact concerning excessive force in this case, and
the defendant officers are entitled to summary judgment as a matter
of law. It necessarily follows that the district court should have
granted their motion for summary judgment on qualified immunity
grounds. See Siegert, 500 U.S. at 232, 111 S. Ct. at 1793.
V. CONCLUSION
24
We REVERSE the district court's denial of the defendants'
motion for summary judgment on qualified immunity grounds as to
both claims and REMAND this case for further proceedings consistent
with this opinion.
25