JoAnn Cooper v. Ryan Black ( 2012 )


Menu:
  •               Case: 11-14722      Date Filed: 08/20/2012   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    No. 11-14722
    D. C. Docket No. 3:10-cv-00695-HES-TEM
    JOANN COOPER,
    individually and as next friend of D.C.,
    Plaintiff-Appellee,
    versus
    JOHN RUTHERFORD,
    in his official capacity as Sheriff of the
    Consolidated City of Jacksonville and
    Duval County, Florida, et al.,
    Defendants,
    RYAN BLACK,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Middle District of Florida
    (August 20, 2012)
    Case: 11-14722       Date Filed: 08/20/2012       Page: 2 of 11
    Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.
    PER CURIAM:
    This case arises from a tragic situation involving innocent bystanders
    caught in the middle of a police chase of an armed suspect. Appellees Joann
    Cooper (“Cooper”) and her son (collectively “Appellees”) were seriously injured
    when an armed bank robber attempted to elude the police by attempting to steal
    the car in which they were riding. Rather than allow the armed bank robber to
    escape with hostages, the officers on the scene fired their weapons at the suspect
    until he was neutralized. Unfortunately, Cooper and her son were both hit by
    bullets intended for the bank robber. Appellant Officer Ryan Black was one of the
    officers on the scene. He appeals the district court’s order finding that he is not
    entitled to qualified immunity for his actions stemming from this tense
    confrontation. Despite our sympathy for the Appellees, we reverse the district
    court’s order denying Officer Black qualified immunity, and remand this case with
    directions that Officer Black be granted qualified immunity and dismissed from
    this case with prejudice.
    I.
    *
    Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by
    designation.
    2
    Case: 11-14722     Date Filed: 08/20/2012    Page: 3 of 11
    On March 26, 2010, the Jacksonville Sheriff’s Office dispatched officers to
    respond to the robbery of a Wachovia Bank and informed the officers that the
    suspect was armed. Officers arrived on the scene and observed the suspect
    running to a nearby Wendy’s with a gun still in his hand. At the same time,
    Cooper was in her automobile with her two children waiting in the Wendy’s drive-
    thru lane. The suspect approached the car and forced Cooper into the passenger
    seat to gain control of the vehicle.
    Multiple police officers, including Officer Black, arrived at the Wendy’s
    restaurant and observed the attempted carjacking. The officers ordered the suspect
    to stop and show his hands. Though Cooper successfully wrenched the gun from
    the suspect’s hand, the officers continued to believe the suspect to be armed.
    Officer Black also observed the children in the back seat of the car.
    Officer Jessie York fired his shotgun twice at the open car door. Upon
    hearing these gunshots, officers on the scene concluded, albeit incorrectly, that the
    suspect had begun to fire upon the officers. Officer Black, along with Officers
    Darries Griffith and York, began to fire at the car. After firing all of the
    ammunition in his gun’s magazine, Black reloaded his weapon and continued
    firing as Cooper’s car began to move past him. The suspect then attempted to exit
    the car. In total, Officer Black, who continued to fire his weapon until the suspect
    3
    Case: 11-14722      Date Filed: 08/20/2012      Page: 4 of 11
    was neutralized, fired 24 shots—four times as many shots as the officer who fired
    the second most bullets.
    Unfortunately, Cooper and her son were struck by bullets during this
    confrontation. Cooper was hit in the right foot and required surgery. Her son was
    shot in the arm and upper torso. He was rushed to the hospital with critical
    injuries, including a collapsed lung and multiple fractures.
    Cooper filed a lawsuit on behalf of herself and her son against the officers
    involved in the shooting in their individual capacities, asserting claims premised
    upon liability pursuant to 42 U.S.C. § 1983 for: (1) an unreasonable seizure by the
    individual officers, in violation of the Fourth and Fourteenth Amendments; and (2)
    a violation of the Substantive Due Process Clause of the Fourteenth Amendment.1
    The officers moved to dismiss on the basis of qualified immunity, which the
    district court granted for all officers save Officer Black. The district court denied
    Officer Black’s motion to dismiss, finding that he was not entitled to qualified
    immunity because his actions, firing 24 shots compared to six or four, were
    unreasonable and “shocked the conscience.”
    II.
    1
    Cooper and her son also brought claims against Sheriff John Rutherford in his official
    capacity as Sheriff of Jacksonville. Those claims are not a part of this appeal.
    4
    Case: 11-14722     Date Filed: 08/20/2012   Page: 5 of 11
    When a defendant raises the defense of qualified immunity in a motion to
    dismiss, this court “review[s] the denial of [the] motion . . . de novo and
    determine[s] whether the complaint alleges a clearly established constitutional
    violation, accepting the facts alleged in the complaint as true, drawing all
    reasonable inferences in [Appellees’] favor, and limiting our review to the four
    corners of the complaint.” Keating v. City of Miami, 
    598 F.3d 753
    , 762 (11th Cir.
    2010) (citation omitted).
    III.
    When faced with a question of qualified immunity, this court conducts a
    two-step analysis to determine whether Appellees carried their burden of
    “establishing both that [Black] committed a constitutional violation and that the
    law governing the circumstances was already clearly established at the time of the
    violation.” Youmans v. Gagnon, 
    626 F.3d 557
    , 562 (11th Cir. 2010) (per curiam)
    (citing Pearson v. Callahan, 
    555 U.S. 223
    , 232, 
    129 S. Ct. 808
    , 815–816 (2009)).
    We may consider “the two prongs of the qualified immunity analysis” in any
    order, at our discretion. 
    Pearson, 555 U.S. at 236
    , 129 S. Ct. at 818.
    With regard to both the Fourth Amendment unreasonable seizure claim and
    the substantive due process claim, discussed infra, our analysis begins and ends
    with the clearly established prong. Assuming, without deciding, that Officer
    5
    Case: 11-14722     Date Filed: 08/20/2012   Page: 6 of 11
    Black committed a constitutional violation, Appellees have not provided this court
    with a preexisting case with facts that are “materially similar” to the events
    leading to their injuries and the alleged constitutional violations. See Marsh v.
    Butler Cnty., Ala., 
    268 F.3d 1014
    , 1032–33 (11th Cir. 2001) (en banc). Therefore,
    Appellees have not carried their burden of showing that the alleged constitutional
    violations were clearly established under prevailing United States Supreme Court,
    Florida Supreme Court, or Eleventh Circuit law. See Thomas v. Roberts, 
    323 F.3d 950
    , 955 (11th Cir. 2003) (“[O]nly Supreme Court cases, Eleventh Circuit
    caselaw, and [state] [s]upreme [c]ourt caselaw can ‘clearly establish’ law in this
    circuit.”).
    A.
    Regarding the Fourth Amendment unreasonable seizure claim, Appellees
    point to two cases, Brendlin v. California, 
    551 U.S. 249
    , 
    127 S. Ct. 2400
    (2007)
    and Vaughan v. Cox, 
    343 F.3d 1323
    (11th Cir. 2003), that they believe clearly
    establish that the events on March 26, 2010, amount to a seizure for the purposes
    of the Fourth Amendment. However, the facts underpinning those cases are not
    materially similar to the case at bar and neither clearly establishes that a Fourth
    Amendment seizure occurred. In Brendlin, the Supreme Court merely held that
    when officers stop a car during a routine traffic stop, the driver and passengers
    6
    Case: 11-14722    Date Filed: 08/20/2012    Page: 7 of 11
    alike are 
    seized. 551 U.S. at 251
    , 127 S. Ct. at 2403. The Supreme Court never
    mentioned the use of deadly force, hostages, innocent bystanders, or any other
    facts that are remotely similar to the case at bar. Therefore, even if the Supreme
    Court intended Brendlin to apply to the events that took place in this case, it could
    not have provided Officer Black with fair notice that a seizure was taking place
    and thus cannot be used to satisfy the requirement that the law be clearly
    established. See Coffin v. Brandau, 
    642 F.3d 999
    , 1015 (11th Cir. 2011).
    Meanwhile, this court in Vaughan certainly clearly established that if a
    passenger-suspect is shot by a bullet intended to stop his fleeing during a chase
    with police officers, then he is seized for purposes of Fourth Amendment 
    analysis. 343 F.3d at 1329
    (holding a seizure occurs when a passenger of a car “[is] hit by a
    bullet that [is] meant to stop him”) (emphasis added)). However, this court just as
    clearly acknowledged the difference between the events in Vaughan and the exact
    situation in this case—when an innocent bystander or hostage is accidentally shot
    by police officers chasing a fleeing suspect. 
    Vaughan, 343 F.3d at 1328
    n.4
    (noting that the innocent bystander and hostage cases from other circuits were
    unhelpful in deciding Vaughan because the passenger shot during the chase was
    also a suspect that the police officers were trying to apprehend). Therefore, pre-
    existing case law does not clearly establish that Appellees were seized when
    7
    Case: 11-14722     Date Filed: 08/20/2012    Page: 8 of 11
    Officer Black’s bullet accidentally struck them during the confrontation with the
    armed bank robber.
    Nor is this a case involving an instance in which “a general constitutional
    rule already identified in the decisional law. . . appl[ies] with obvious clarity to the
    specific conduct in question[.]” See United States v. Lanier, 
    520 U.S. 259
    , 271,
    
    117 S. Ct. 1219
    , 1227 (1997); see also Priester v. City of Riviera Beach, Fla., 
    208 F.3d 919
    (11th Cir. 2000) (“When . . . ‘the official’s conduct lies so obviously at
    the very core of what the Fourth Amendment prohibits that the unlawfulness of the
    conduct was readily apparent to the official, notwithstanding the lack of caselaw,’
    the official is not entitled to the defense of qualified immunity.”). The existing
    case law regarding whether Appellees were seized for the purposes of the Fourth
    Amendment is far from settled, as evidenced by the varying decisions from our
    sister circuits analyzing similar situations. Compare Childress v. City of Arapaho,
    
    210 F.3d 1154
    (10th Cir. 2000) (no seizure), Schaefer v. Goch, 
    153 F.3d 793
    (7th
    Cir. 1998) (no seizure), Medeiros v. O’Connell, 
    150 F.3d 164
    (2d Cir. 1998) (no
    seizure), Rucker v. Harford Cnty., 
    946 F.2d 278
    (4th Cir. 1991) (no seizure), and
    Landol-Rivera v. Cruz Cosme, 
    906 F.2d 791
    (1st Cir. 1990) (no seizure), with
    Fisher v. City of Memphis, 
    234 F.3d 312
    (6th Cir. 2000) (seizure).
    8
    Case: 11-14722     Date Filed: 08/20/2012    Page: 9 of 11
    Moreover, even if we determine that it is clearly established that Appellees
    were seized for the purposes of the Fourth Amendment, we are unaware of any
    case that clearly establishes that Officer Black’s actions were constitutionally
    unreasonable. The district court determined that the other officers who fired their
    weapons acted reasonably because the use of deadly force against the fleeing
    armed bank robber was appropriate, see Robinson v. Arrugueta, 
    415 F.3d 1252
    ,
    1255 (11th Cir. 2005), and they only fired between four and six times. However,
    the district court also found that Officer Black was unreasonable for firing 24
    times. We agree that deadly force against the armed robber was appropriate, but
    we cannot find a single case in this circuit or from the Supreme Court that clearly
    establishes that a large number of shots fired makes a reasonable use of deadly
    force unreasonable. In fact, this court recently held that “[a] police officer is
    entitled to continue his use of force until a suspect thought to be fully armed is
    ‘fully secured.’” Jean-Baptiste v. Gutierrez, 
    627 F.3d 816
    , 822–23 (11th Cir.
    2010) (quoting Crenshaw v. Lister, 
    556 F.3d 1283
    , 1293 (11th Cir. 2009)).
    Once the car started moving forward, Officer Black was faced with the
    choice of either allowing the suspect to escape with multiple hostages and perhaps
    leading police on a high speed chase through the busy streets of Jacksonville or
    ensuring that the suspect could not leave the Wendy’s parking lot. We cannot say
    9
    Case: 11-14722     Date Filed: 08/20/2012   Page: 10 of 11
    that it is clearly established he made the wrong choice and committed a
    constitutional violation. Because “preexisting law [did not] provide [Black] with
    fair notice that” firing 24 shots was unreasonable in these circumstances, he is
    entitled to qualified immunity as to Appellees’ Fourth Amendment claim for
    unreasonable seizure. See Coffin v. Brandau, 
    642 F.3d 999
    , 1015 (11th Cir.
    2011).
    B.
    For the same reasons Officer Black is entitled to qualified immunity for
    Appellees’ Fourth Amendment claims, he is also entitled to qualified immunity for
    the Fourteenth Amendment substantive due process claims. If Officer Black’s
    actions did not constitute a seizure of Appellees, then the non-custodial nature of
    the interaction precludes liability unless Officer Black’s actions were “arbitrary or
    conscience shocking.” White v. Lemacks, 
    183 F.3d 1253
    , 1257 (11th Cir. 1999)
    (quoting Collins v. City of Harker Heights, 
    503 U.S. 115
    , 128, 
    112 S. Ct. 1061
    ,
    1070 (1992)). Again, assuming without deciding that Officer Black violated
    Appellees’ constitutional rights, we conclude that it was not clearly established
    that his actions violated the Substantive Due Process Clause of the Fourteenth
    Amendment. “[O]nly the most egregious official conduct can be said to be
    ‘arbitrary in the constitutional sense[.]” Cnty. of Sacramento v. Lewis, 
    523 U.S. 10
                 Case: 11-14722      Date Filed: 08/20/2012    Page: 11 of 11
    833, 846, 
    118 S. Ct. 1708
    , 1716 (1998) (quoting 
    Collins, 503 U.S. at 129
    , 112 S.
    Ct. at 1070). When officers are forced to make immediate, hasty decisions, “even
    precipitate recklessness fails to inch close enough to harmful purpose to spark the
    shock that implicates . . . [the Constitution]. . . . [A] purpose to cause harm is
    needed . . . for due process liability in a pursuit case.” 
    Id. at 853–54, 118
    S. Ct. at
    1720. There is no case law from this circuit or the Supreme Court that clearly
    established that Officer Black’s actions shock the conscience. Therefore, we
    conclude that he is entitled to the defense of qualified immunity as to Appellees’
    substantive due process claims.
    IV.
    For the aforementioned reasons, we reverse the district court’s order finding
    that Officer Black is not entitled to qualified immunity as to Appellees’ Fourth
    and Fourteenth Amendment claims and remand this case with directions that
    Officer Black be granted qualified immunity and dismissed from this cause with
    prejudice.
    REVERSED and REMANDED.
    11