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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10108
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-02272-CEH-JSS
MARK J. LANDON,
Plaintiff - Appellant,
versus
CITY OF NORTH PORT,
Defendant - Appellee,
KEVIN VESPIA,
in his Official Capacity as Chief of Police of North Port Police, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 13, 2018)
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Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
When North Port Police Department (“NPPD”) officers found Mark Landon
in the woods, he was naked except for his underwear, suicidal, bleeding heavily
from a self-inflicted wound, and laying on the ground. Concerned for their safety
due to reports that Landon possessed a knife, the officers decided not to approach
him. Instead, they ordered a K-9 dog to bite him. The bite wounds later became
badly infected and required months of medical treatment and surgical intervention.
After this encounter, Landon sued the City of North Port (the “City”), alleging
violations of his Fourth Amendment rights under
42 U.S.C. § 1983 based on the
officers’ use of excessive force.
The district court granted the City’s motion for summary judgment. The
court found there was no genuine dispute that the officers’ use of force was
reasonable and therefore not excessive. After careful review, we reverse and
remand for further proceedings.1
I.
1
We sua sponte grant rehearing in this case, withdraw the previous opinion filed on
September 10, 2018 and appearing at — F. App’x —,
2018 WL 4293324 (11th Cir. 2018), and
issue this opinion in its place. See, e.g., Mockeviciene v. U.S. Att’y Gen., 237 F. App’x 569,
570 (11th Cir. 2007) (per curiam) (unpublished). Landon’s petition for rehearing en banc is
therefore denied as moot. In addition, the previous opinion may not be cited by or to this court
or any district court of the Eleventh Circuit.
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During the early evening hours of July 20, 2014, Landon was depressed and
suicidal. He entered the screened garage of the home he shared with his mother,
grabbed a knife, and slashed his left wrist multiple times. The cuts completely
transected his ulnar artery. His mother, Rose Landon (“Mrs. Landon”) discovered
him soon thereafter in the garage. She realized Landon was bleeding heavily from
the deep cuts he made to his wrist, and began screaming.
Her screams attracted the attention of Landon’s brother-in-law, Peter
Madish, who lived next door. Sensing something was wrong, he rushed over to her
garage and saw an undressed Landon standing some distance away with a knife in
his hand. Madish thought Landon was under the influence of either drugs or
alcohol. Madish then went into the garage, put Landon in a headlock, and wrestled
the knife away. After losing control of the knife, Landon fled. In the meantime,
Mrs. Landon dialed 9-1-1 and informed the operator that her son was trying to kill
himself.
Officers Dino Murges and Keith Bush were dispatched to the scene. When
they arrived, they found Madish standing in the driveway of his home. From him,
the officers learned that Landon was suicidal, likely intoxicated, and bleeding
badly from a self-inflicted injury. Madish also informed the officers that Landon
grabbed another knife before fleeing. Mrs. Landon told the officers a similar story.
The officers separately observed blood in the driveway of the Landon home and
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garage, with a significant amount of blood on the concrete outside. Based on their
observations and the statements of both Madish and Mrs. Landon, Officers Murges
and Bush knew Landon was “bleeding profusely.”
Officer Bush, a K-9 officer, suggested using his K-9 dog, Tomy, to track
Landon down. Landon was not suspected of a crime, but the officers wanted to
locate him to make sure he was okay. Officer Murges agreed to serve as backup.
Using Tomy, the officers eventually tracked Landon to a wooded area, where he
lay on the ground, partially concealed by a bush and clad in only his underwear.
The officers came to a stop approximately fifteen feet away from Landon and
ordered him to show his hands. Officer Murges also immediately drew his firearm
and trained it on Landon.
The parties dispute what happened next. Officers Bush and Murges testified
at their depositions that Landon was laying on his side and rolled further into a
fetal position after being ordered to show his hands. The officers warned Landon
they would release a K-9 dog on him if he did not comply with their demands.
Officer Murges additionally testified that Landon responded at one point by yelling
or screaming “Oh,” and something else that Murges “couldn’t exactly hear.” In
contrast, Officer Bush testified that Landon never said anything or made any noise
in response to their commands. Both Officer Murges and Officer Bush
acknowledged that Landon never made any movements towards them, and Officer
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Murges recalled that Landon was “obvious[ly]” bleeding. Nonetheless, Officer
Murges thought Landon was coherent and actively concealing himself from the
officers. Officer Bush also thought Landon was actively resisting commands.
Landon, on the other hand, says he never responded to the officers and was
unconscious at the time. Although he has no memory of the incident, he
introduced expert testimony from Dr. Michael VanRooyen, who opined that
Landon’s likely Glasgow Coma Scale (“GSC”) score of 7 at the time meant
Landon was “only minimally responsive” and capable of non-responsive
movement and/or groaning and moaning. Dr. VanRooyen testified that he did not
think Landon’s GSC score was affected by the dog bite. Several other officers
who arrived at the scene after the bite gave deposition testimony that Landon was
unresponsive, motionless, and bleeding.
The parties do not dispute that Officer Bush gave Tomy the command to bite
Landon. 2 In response, Tomy sank his teeth into Landon’s abdomen and pulled
Landon onto his back, at which point Officer Bush realized Landon was unarmed
and ordered Tomy to release Landon. Neither is it disputed that Tomy’s bite
punctured Landon’s abdomen in two places and that no knife was ever located in
the area Landon was found. Although Landon ultimately received medical
2
Officer Bush explained at his deposition that deploying a taser was not an option
because the wires would be obstructed by the brush. He also testified that he was afraid to
approach Landon out of fear he would be stabbed.
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attention for the injuries to his wrist and abdomen, the bite punctures became
infected and required extensive medical care.
Landon sued the City in the United States District Court for the Middle
District of Florida on September 30, 2015. His amended complaint asserted two
claims under
42 U.S.C. § 1983 based on excessive force in violation of the Fourth
Amendment: failure to supervise and failure to discipline. His complaint also
included a claim of battery under Florida state law. After discovery, the City
moved for summary judgment.
Landon responded in opposition to the City’s motion for summary
judgment. Included with his responsive pleading were numerous exhibits in
support of his opposition, including a transcript of Dr. VanRooyen’s deposition,
Dr. VanRooyen’s expert report, and a new affidavit from Landon stating that he
did not roll over on his side when Officer Bush ordered him to show his hands.
The district court granted summary judgment in favor of the City. The court first
rejected Landon’s new affidavit as a sham. Landon previously gave deposition
testimony that he was unconscious during the encounter with the officers and could
remember nothing of what transpired. Based on this testimony, the court
concluded Landon was not competent to testify on the matters included in the new
affidavit because he could not have had personal knowledge of what took place
during the time he was unconscious.
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The district court next found that Landon failed to point to a genuine issue of
material fact about whether the officers used excessive force when Officer Bush
ordered Tomy to bite Landon. Because there can be no municipal liability under
42 U.S.C. § 1983 absent a constitutional violation (in this case, excessive force),
the district court granted the City summary judgment on Landon’s failure to train
and failure to discipline claims. Without any federal claims to adjudicate, the
district court declined to exercise supplemental jurisdiction over Landon’s
remaining state battery claim and dismissed that claim without prejudice.
Landon timely appealed.
II.
We review a district court’s decision to exclude an affidavit filed in
opposition to a motion for summary judgment for abuse of discretion. See Reese
v. Herbert,
527 F.3d 1253, 1265 (11th Cir. 2008); McCorvey v. Baxter Healthcare
Corp.,
298 F.3d 1253, 1256 (11th Cir. 2002). We review de novo a district court’s
grant of summary judgment, viewing the facts and drawing all reasonable
inferences in favor of the opposing party. Garczynski v. Bradshaw,
573 F.3d 1158,
1165 (11th Cir. 2009). Summary judgment is only appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
III.
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Landon first argues the district court abused its discretion when it excluded
his affidavit from consideration as both inconsistent with his deposition testimony
and not based on personal knowledge. This argument is without merit.
Landon stated at his deposition, “As far as I know, I was unconscious, so I
don’t know what I could have done.” When pressed to explain what he meant,
Landon admitted it was fair to say he “didn’t know what [he] did” in the woods.
He also repeatedly testified that he could not remember what happened after he ran
into the woods. He explained that his memory was foggy because he was “pretty
much” “check[ed] out” and “dead” after he fled the garage. Landon even reiterated
in his new affidavit that he never regained consciousness during the encounter with
Officers Bush and Murges.
Federal Rule of Civil Procedure 56(c)(4) requires that “[a]n affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” The district court
did not abuse its discretion when it found, based on Landon’s deposition
testimony, that he could not have possessed the personal knowledge required to
make the claims he did in his new affidavit. Cf. DiStiso v. Cook,
691 F.3d 226,
230 (2d Cir. 2012) (expressing concern that the parents’ deposition testimony was
inadmissible because they did not have “personal knowledge of what occurred,”
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and therefore may not have been competent to testify to the truth of what happened
to their son). As the district court observed, Landon could not have been both
unconscious and able to recall that he never “attempt[ed] to roll over onto his side
when Officer Bush commanded him to show his hands.” Thus, Landon necessarily
lacked personal knowledge of his movements, and the district court’s exclusion of
his affidavit was proper.
IV.
We agree with Landon, however, that the district court erred when it granted
summary judgment for the City on his
42 U.S.C. § 1983 claims.
Plaintiffs seeking to hold a municipality liable for constitutional violations
under § 1983 must prove first, that there was a constitutional violation, and second,
that the violation was a product of the municipality’s “official policy” or
“unofficial custom or practice.” Grech v. Clayton Cty.,
335 F.3d 1326, 1329 (11th
Cir. 2003) (en banc) (quotation marks omitted). Here, the district court did not
reach the second inquiry because it found Landon failed to introduce a genuine
dispute of material fact that the officers violated his constitutional rights by
engaging in excessive force. The district court’s assessment of the evidence
missed the mark. Our review of the record reveals a genuine dispute of material
fact as to what information the officers had when Officer Bush ordered Tomy to
bite Landon. This, in turn, implicates the core question of whether the officers’ use
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of force was objectively reasonable. As a result, the district court’s grant of
summary judgment to the City was not appropriate.
Where, as here, there is a claim of excessive force under the Fourth
Amendment, we must ask whether the officers’ actions were “objectively
reasonable in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Garczynski,
573 F.3d at 1166–67
(quotation marks omitted) (quoting Graham v. Connor,
490 U.S. 386, 397,
109 S.
Ct. 1865, 1872 (1989)). An officer’s good intentions do not “make an objectively
unreasonable use of force constitutional.” Graham,
490 U.S. at 397,
109 S. Ct. at
1872. Although we “must resist the temptation to judge an officer’s actions with
the 20/20 vision of hindsight,” Garcynski,
573 F.3d at 1167 (quotation marks
omitted), we are not required to close our eyes to evidence that circumstances at
the time may have rendered an officer’s actions objectively unreasonable. Instead,
we must pay “careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”3 Graham,
490 U.S. at 396,
109 S. Ct. at 1872.
3
“Because this situation does not involve a criminal arrest, our facts do not fit neatly
within the Graham framework.” Mercado v. City of Orlando,
407 F.3d 1152, 1157 (11th Cir.
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The City urges us to affirm the district court’s ruling because it was “hardly
unreasonable for Officer Bush to deploy Tomy” when the officers thought Landon
possessed a knife and was actively resisting commands. This argument, however,
fails to fully credit Landon’s evidence, which we are required to do on summary
judgment. Although it is uncontested that Officers Bush and Murges thought
Landon was armed with a knife when they found him in the woods, Landon
introduced evidence that they were also aware he was clad in nothing more than
his underwear and bleeding profusely from a self-inflicted wound. In addition,
Landon was not suspected of committing a crime. Last, and drawing all inferences
in Landon’s favor, there is evidence that even if the officers thought Landon
possessed a knife, they could not have reasonably thought he was in any condition
to use the knife. This evidence is sufficient for Landon’s case to survive summary
judgment.
To begin, there is substantial evidence suggesting that the officers could not
have reasonably thought Landon posed an immediate threat to their safety or that
of others. First, the officers were aware Landon was bleeding profusely. The City
asserts that “the officers . . . had no way of discerning how much blood Landon
had lost.” But it matters little that neither Officer Bush nor Murges could have
known that Landon had cut through his artery. Both officers testified they
2005). Nonetheless, the Graham factors help guide our inquiry as to whether the officers’ use of
force in these circumstances was objectively reasonable. See Mercado,
407 F.3d at 1157.
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observed blood on the scene. Beyond that, Officer Murges testified there was
blood in the driveway, the garage, and the concrete outside, and that it was
“clear[]” from the evidence Landon was “bleeding profusely.” It was also
“obvious” to Officer Murges that Landon was still bleeding when the officers
found him in the woods.
The officers further acknowledge that Landon never made any movements
toward them, and to the extent he moved, it was only to curl further into a “fetal”
position. Officer Bush also testified no one informed him Landon “was trying to
harm anyone other than himself” and that Landon was not suspected of committing
a crime. Viewing the evidence in the light most favorable to Landon and drawing
all inferences in his favor, the officers ordered a dog to bite Landon from a
distance of fifteen feet away even though Landon posed no threat to them and,
indeed, appeared significantly incapacitated due to substantial blood loss. Landon
did not physically move toward the officers and, based on Officer Bush’s
testimony, offered no verbal resistance whatsoever. In fact, Landon may have
made no “verbal noises,” much less statements, at all.
Neither is it clear from the record that Landon was capable of rolling over
and curling into himself, as the officers recounted. Dr. VanRooyen testified
Landon’s GSC score was 7 when he received medical assistance, meaning he was
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only “minimally responsive.”4 Dr. VanRooyen also testified he did not think
Landon’s GSC score was different before the dog bite, and that someone with a
GSC score of 7 could “appear to be conscious but obtunded,” due to his or her
ability to move non-purposefully. Whether that non-purposeful movement could
include curling into a fetal position remains an open question. However, two
officers who arrived at the scene later testified that Landon was unresponsive and
motionless when they saw him. On a motion for summary judgment, it is
reasonable to infer from this evidence that Landon may not have moved at all in
response to the officers’ commands, and that even if he had, his movements would
have appeared lethargic or deadened. In other words, while the officers may have
had reason to think Landon was armed with a knife, there is also evidence that they
could not have reasonably thought Landon was in any condition to use the knife.
In addition, Landon’s expert, Kyle Heyen, opined in his report that the
officers could have used a number of less forceful means to secure Landon. 5
According to Heyen, the officers could have moved closer to Landon or attempted
to change their position to get a better view of his face and hands rather than
immediately resorting to a dog bite. Heyen also said the officers could have waited
4
According to Dr. VanRooyen, the GSC scale ranges from 3 (“utterly unresponsive”) to
15 (“completely alert”).
5
Heyen is a former police officer and law enforcement canine trainer, who has testified
in a number of cases. The district court assumed for purposes of summary judgment that Heyen
was qualified and his report and deposition testimony admissible, as do we.
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for backup, which was already on the way, and arranged for a distraction. A
distraction maneuver would have taken “seconds” to employ, and would have
involved having one officer distract Landon with loud commands while a second
officer moved close enough to deploy a device such as a taser to subdue him. Last,
the officers could have moved closer to Landon and tased him even without a
distraction, given that Landon was not suspected of a crime and had made no
threatening movements towards them. Officer Bush was standing fifteen feet away
from Landon when he ordered Tomy to bite. However, a taser has a range of
twenty-five feet. Although Officer Bush testified that tasers are less accurate the
further away an officer stands from a subject, there was nothing preventing him
from moving a few feet closer to increase the likelihood he could successfully
subdue Landon by tasing him in the leg or torso. Instead, rather than attempt any
of these options, Officer Bush ordered Tomy to bite Landon while he was still
standing a full fifteen feet away and in no immediate danger of attack.
Viewing the facts in this light, as we must on summary judgment, the
officers violated Landon’s Fourth Amendment rights when they ordered Tomy to
bite Landon—a man who was not wanted for a crime, posed no immediate threat to
the officers, and appeared unconscious or significantly impaired by blood loss.
See Mercado,
407 F.3d at 1157–58 (reversing grant of summary judgment where
an officer shot the suicidal plaintiff in the head even though the plaintiff had made
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no threatening moves toward the police, “was not actively resisting arrest,” and did
not “pose[] an immediate threat to the officers at the time he was shot”). The state
has “a compelling interest in preventing suicide,”
id. at 1157, but this Court has
concluded before that an officer clearly engages in excessive force when he orders
a dog to attack and bite a person who poses no threat of bodily harm to the officers
and does not attempt to flee or resist arrest. See Priester v. City of Riviera Beach,
208 F.3d 919, 927 (11th Cir. 2000).
Unlike in Priester, Landon was not suspected of a crime and may not have
even appeared conscious when Officer Bush ordered Tomy to bite him. In
addition, the officers had a range of less forceful means available to them. This is
sufficient to cast doubt on whether Officer Bush’s use of force was objectively
reasonable as a matter of law.6 We therefore reverse the district court’s grant of
summary judgment on Landon’s § 1983 claims and remand for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
6
The City characterizes Landon’s injury in this case as “unfortunate, though less
unfortunate then his intended outcome upon entering the woods,” and argues that “an unfortunate
outcome does not equate to unreasonableness.” This argument misapprehends the crux of
Landon’s argument. That Landon sought to kill himself does not render the officers’ actions de
facto reasonable simply because the injuries he suffered did not result in his death. More to the
point, Landon’s argument is not that the officers violated his constitutional rights because they
harmed him. Rather, he argues—correctly—there was sufficient evidence in the record to
support his claim that the officers engaged in excessive force by inflicting serious injuries on him
when there was no objective reason to do so. For this reason, we reverse the district court’s grant
of summary judgment.
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