Vicki Sexton v. Nicolo Mangiaracina

Case: 16-11403 Date Filed: 09/16/2016 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11403
Non-Argument Calendar
________________________
D.C. Docket No. 8:14-cv-03022-SCB-AEP
VICKI SEXTON,
as the Personal Representative of
the Estate of Ronald Wesley Sexton,
BRANDY WALLACE,
as the Personal Representative of
the Estate of Ronald Wesley Sexton,
Plaintiffs-Appellees,
versus
NICOLO MANGIARACINA,
Officer, individually and as a member of St. Petersburg Police Department,
JUSTIN MORALES,
Officer, individually and as a member of St. Petersburg Police Department,
MICHAEL ROMANO,
Officer, individually and as a member of St. Petersburg Police Department,
ANTHONY HOLLOWAY,
Chief, St. Petersburg Police Department Chief,
CITY OF ST. PETERSBURG,
d.b.a. City of St. Petersburg Police Department,
Defendants-Appellants.
Case: 16-11403 Date Filed: 09/16/2016 Page: 2 of 12
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 16, 2016)
Before ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.
PER CURIAM:
In the early hours of September 2, 2013 Andrea Robinson called 911 and
reported that her next door neighbor, Ronald Sexton, had gotten into a verbal
argument with her boyfriend, Cedric Warren. Warren also got on the phone with
the 911 dispatcher and said that Sexton had “shown” him a handgun but had not
pointed it at him. Warren said that Sexton’s wife or girlfriend came over and told
him that Sexton had been drinking. Robinson then got on the phone with the
dispatcher and said she could see Sexton standing “right off his walkway” in front
of the door to his house, and he was talking on his cell phone. Robinson said she
saw Sexton “load” the gun and put it in his right pocket. The dispatcher relayed
that information to the officers who were on their way to the scene.
Officers Nicolo Mangiaracina, Justin Morales, and Michael Romano, along
with other St. Petersburg Police Department officers, arrived on the scene to see
Sexton, still talking on his cell phone, and his son, Joshua, then ten years old, on
2
Case: 16-11403 Date Filed: 09/16/2016 Page: 3 of 12
their lighted front porch. When Joshua saw the officers approach, he ran into the
house. The parties dispute what happened next, and they offer different accounts
of the events that led to the fatal shooting of Sexton. At the summary judgment
stage, we must view the evidence in the light most favorable to the non-moving
party. See Morton v. Kirkwood, 707 F.3d 1276, 1279 (11th Cir. 2013). Those
facts come from Joshua’s description of what he saw, presented in the form of an
affidavit the plaintiffs submitted as part of their opposition to summary judgment.
That affidavit explains that when Joshua ran inside he went to a window that
looks out onto the porch, where he watched his father take the gun out of his
pocket and kick it off of the porch before the police made contact with him. After
he saw his father kick the gun away, Joshua heard the officers yell at his father to
drop the gun, and he watched his father drop the cell phone, the only thing in his
hands. The officers then ordered Sexton to get on the ground. Sexton placed one
knee on the ground and was in the process of placing his other knee down when
Officers Mangiaracina, Morales, and Romano shot and killed him.
In the hours following the shooting, various law enforcement officials
interviewed Joshua three separate times. During his first and second interviews,
one of which he gave under oath, Joshua stated that he watched as the officers shot
his unarmed father, who was complying with their instructions. In the third
3
Case: 16-11403 Date Filed: 09/16/2016 Page: 4 of 12
interview, Joshua said that he saw his father drop the gun and kick it off the porch,
but that he did not actually see what happened after that because he left the
window to go tell his mother what was happening.
The plaintiffs, who are the personal representatives of Sexton’s estate,
brought this lawsuit against the officers under 42 U.S.C. § 1983 alleging that the
officers used excessive force in violation of the Fourth Amendment. They also
asserted state law wrongful death claims against the officers and Chief Anthony
Holloway and state law battery claims against the officers and the city of St.
Petersburg. The defendants moved for summary judgment, with the officers
contending that they were entitled to qualified immunity on the § 1983 claims, and
the officers, Chief Holloway, and the city contending that they were entitled to
summary judgment on the state law claims on the merits. The district court denied
that motion, and they now appeal.
While the notice of appeal includes Chief Holloway and the city as
appellants, indicating that they are appealing the denial of summary judgment on
the state law claims, the parties have not briefed the denial of summary judgment
on those claims. It is questionable if we have pendent appellate jurisdiction over
those claims. See Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 44–51, 115
S. Ct. 1203, 1209–12 (1995). Even if we do, we decline to consider them because
4
Case: 16-11403 Date Filed: 09/16/2016 Page: 5 of 12
the defendants have abandoned them by failing to brief them. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long
held that an appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without supporting arguments
and authority.”). We have interlocutory appellate jurisdiction over the denial of
the defense of qualified immunity as to the § 1983 claims against the officers. See
Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985) (“[W]e hold
that a district court’s denial of a claim of qualified immunity . . . is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.”). “We review de novo a district court’s denial of
summary judgment based on qualified immunity, applying the same legal
standards that governed the district court.” Feliciano v. City of Miami Beach, 707
F.3d 1244, 1247 (11th Cir. 2013).
As we have mentioned, one of the main pieces of evidence upon which the
plaintiffs relied was Joshua’s affidavit, which set forth facts that the district court
considered when ruling on summary judgment. The officers contend that the
district court should not have considered Joshua’s statements in his affidavit
because other evidence in the record discredits his version of events, especially his
observations based on having watched the shooting itself. The officers point to
5
Case: 16-11403 Date Filed: 09/16/2016 Page: 6 of 12
their deposition testimony and an earlier statement Joshua had given about the
shooting as discrediting his affidavit. At the summary judgment stage, we view the
facts “in the light most favorable to the moving party,” but “only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct.
1769, 1776 (2007) (quoting Fed. R. Civ. P. 56(c)). We may not give credence to
facts that are patently contradicted by the record. See, e.g., id. (“When opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
But that contradiction must be so “blatantly inconsistent” or “incredible as a matter
of law” that the facts “could not have possibly been observed” or the testimony is
“contrary to the laws of nature.” Feliciano, 707 F.3d at 1253.
On four separate occasions, Joshua has given his account of what he saw the
night his father died. In his first two interviews Joshua said that he watched the
officers shoot his unarmed and compliant father while he was attempting to kneel
on the ground. In his third interview, he said that he saw the events leading up to
the shooting but he did not see the shooting itself. 1 In his fourth account — given
1
All three of these interviews were conducted in the early morning hours following the
shooting. The first was conducted by a detective, the second was conducted by an assistant
state’s attorney, and the third was conducted by internal affairs investigators.
6
Case: 16-11403 Date Filed: 09/16/2016 Page: 7 of 12
in his affidavit — Joshua again said that he saw the officers shoot Sexton, who was
unarmed and obeying their commands. Joshua’s affidavit contradicts his earlier
statement from the third interview that he was not looking out the window when
the officers shot Sexton. The affidavit is also inconsistent with the officers’
account of what happened: that Sexton, who had initially been compliant with their
orders, pulled the gun from his right pocket and pointed it at Officer Mangiaracina,
and that only then did the officers shoot Sexton. Joshua’s affidavit testimony that
he saw the shooting, however, is supported by statements he made during the first
two interviews. Only after giving those two statements, consistently saying that he
watched as the officers shot his unarmed and compliant father, did Joshua, in his
third interview (the one conducted by internal affairs investigators), say that he was
not looking out the window when the shooting occurred.
Joshua’s statements, while inconsistent, do not recount “facts that could not
have possibly been observed or events that are contrary to the laws of nature.” Id.
While his affidavit stating that he saw the shooting contradicts one of his earlier
statements that he did not, those inconsistencies present a credibility issue, which
is something that we cannot decide at the summary judgment stage. See Moorman
v. UnumProvident Corp., 464 F.3d 1260, 1266 n.1 (11th Cir. 2006) (“Credibility
determinations at the summary judgment stage are impermissible.”).
7
Case: 16-11403 Date Filed: 09/16/2016 Page: 8 of 12
In light of Joshua’s affidavit and taking the facts in the light most favorable
to the plaintiffs, we turn to the issue of whether the officers are entitled to qualified
immunity. The purpose of qualified immunity “is to allow government officials to
carry out their discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly incompetent or one who
is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002) (quotation marks and citation omitted).
To obtain qualified immunity, the defendants must show that they were
acting within their discretionary duty. Mobley v. Palm Beach Cty. Sheriff Dep’t,
783 F.3d 1347, 1352 (11th Cir. 2015). That point is undisputed here. To
overcome qualified immunity, the plaintiffs must establish (1) that the defendants
violated Sexton’s constitutional rights and (2) that “the law clearly established
those rights at the time of the alleged misconduct.” Id. at 1352–53 (quotation
marks omitted). “We may address those two inquiries in either order.” Id.
The plaintiffs’ excessive force claim arises under the Fourth Amendment,
which prohibits a use of force that is “objectively [un]reasonable in light of the
facts and circumstances confronting” the officer. Graham v. Connor, 490 U.S.
386, 397, 109 S. Ct. 1865, 1872 (1989) (quotation marks omitted). Stated another
way, “[o]fficers may use force that is ‘necessary in the situation at hand.’” Fils v.
8
Case: 16-11403 Date Filed: 09/16/2016 Page: 9 of 12
City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (quoting Lee, 284 F.3d at
1197).
Under the facts as we must take them here, the officers’ use of deadly force
was neither necessary nor reasonable. To the contrary, we have held under facts
similar to those of this case that an officer cannot use deadly force against a
compliant suspect who is not placing others in imminent danger. Morton v.
Kirkwood, 707 F.3d 1276 (11th Cir. 2013), is one example. In that case officers
encountered a suspect sitting in his car and, when the suspect began to slowly drive
the car away he noticed an officer chasing him. Id. at 1279. The suspect heard the
officer shout, and he responded by immediately placing his car in park and raising
his hands, at which point another officer on the scene shot him seven times. Id. at
1279–80. We held that the officer had violated the suspect’s Fourth Amendment
rights because he acted unreasonably by “sho[oting] an unarmed man in a
stationary vehicle while having no reason to believe that the man would place
anyone’s safety in danger.” Id. at 1282; see also Perez v. Suszczynski, 809 F.3d
1213, 1217–19 (11th Cir. 2016) (finding that an officer used excessive force when
he shot a suspect who had been thrown to the ground and who was complying with
the officers’ orders); Salvato v. Miley, 790 F.3d 1286, 1293–94 (11th Cir. 2015)
(finding a Fourth Amendment violation where an officer shot a suspect who
9
Case: 16-11403 Date Filed: 09/16/2016 Page: 10 of 12
initially resisted arrest and struck the officer but who had retreated beyond striking
distance when the officer shot him without warning); see also Lee, 284 F.3d at
1198 (finding a Fourth Amendment violation where an officer slammed an
arrestee’s head against her vehicle despite the fact that she posed no threat and no
risk of fleeing); Priester v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir.
2000) (holding that an officer used excessive force when he ordered his dog to
attack a burglary suspect who was complying with the officer’s orders).
The officers here had been informed that Sexton had been drinking and had
a loaded gun in his pocket. According to the plaintiffs’ version of the facts,
however, Sexton showed no indication that he was reaching for the gun or
otherwise planned to use it. And what we accept as facts at this stage of the
proceedings is that Sexton, having dropped his cell phone (the only thing in his
hands), attempted to comply with the officers’ instructions to get on the ground.
As he began to kneel, the officers shot him. While the officers may have
reasonably believed that Sexton had a handgun in his pocket, he was complying
with their orders and not acting in a manner that a reasonable officer would
interpret as posing an immediate threat. To conclude that Sexton reached for the
firearm and pointed it at an officer, we would have to credit the officers’ version of
facts over Joshua’s, which we cannot do at summary judgment. The district court
10
Case: 16-11403 Date Filed: 09/16/2016 Page: 11 of 12
did not err in finding that a reasonable jury could conclude that the officers’
actions constituted excessive force in violation of the Fourth Amendment.
To overcome a qualified immunity defense, it must have been clearly
established at the time that the conduct was a constitutional violation. “For the law
to be ‘clearly established,’ case law must ordinarily have been earlier developed in
such a concrete and factually defined context to make it obvious to all reasonable
government actors, in the defendant’s place, that what he is doing violates federal
law.” Priester, 208 F.3d at 926 (11th Cir. 2000). However, “although ‘officials
must have fair warning that their acts are unconstitutional, there need not be a case
on all fours[ ] with materially identical facts, . . . so long as the prior decisions gave
reasonable warning that the conduct at issue violated constitutional rights.’”
Salvato v. Miley, 790 F.3d 1286, 1294 (11th Cir. 2015) (alterations in original)
(quoting Holloman ex rel. Hollman v. Harland, 370 F.3d 1252, 1277 (11th Cir.
2004)).
As noted above, we have more than once held that an officer cannot use
deadly force against a suspect who is complying with their orders and not posing
an imminent threat. See Morton, 707 F.3d at 1282; Lee, 284 F.3d at 1198, Priester,
11
Case: 16-11403 Date Filed: 09/16/2016 Page: 12 of 12
208 F.3d at 927. 2 Those cases clearly established the unreasonableness and
unlawfulness of the officers’ decision to shoot Sexton under what we have taken to
be the facts for present purposes, keeping in mind that they may not be the actual
facts established at trial. See Swint v. City of Wadley, Ala., 5 F.3d 1435, 1439
(11th Cir. 1993), overruled on other grounds by Swint v. Chambers Cty. Comm’n,
514 U.S. 35, 115 S. Ct. 1203 (1995). And this ruling affirming the denial of
qualified immunity at summary judgment does not mean that the officers cannot by
following proper procedures prevail at trial on qualified immunity grounds. See
Johnson v. Breeden, 280 F.3d 1308, 1317–19 (11th Cir. 2002); Cottrell v.
Caldwell, 85 F.3d 1480, 1487–88 (11th Cir. 1996).
AFFIRMED.
2
We issued Perez and Salvato after the officers shot Sexton, and thus we cannot rely on
those cases when looking to whether the right was clearly established at the time of the violation.
12