Deborah A. Kenning v. Daniel Carli

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12975
________________________
D.C. Docket No. 8:13-cv-02187-CEH-TGW
DEBORAH A. KENNING, as the Personal Representative of the
Estate of Robert Allen Cortes,
Plaintiff–Appellant,
versus
DANIEL CARLI, Officer,
in his individual capacity,
JORDAN HERNANDEZ, Officer,
in his individual capacity,
CITY OF LAKELAND, FLORIDA,
Defendants–Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 15, 2016)
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Before HULL, JULIE CARNES, and CLEVENGER,* Circuit Judges.
JULIE CARNES, Circuit Judge:
Plaintiff appeals the district court’s order granting summary judgment to
Defendants on claims arising out of the shooting of her son, Robert Cortes, by City
of Lakeland police officers Daniel Carli and Jordan Hernandez. The shooting
occurred during a confrontation between Cortes and the officers on March 15,
2012. Plaintiff asserted § 1983 excessive force claims 1 against Carli and
Hernandez in their individual capacities, and a state battery claim against the City.
The district court concluded that the shooting was reasonable under the
circumstances, and granted summary judgment on all of Plaintiff’s claims.
BACKGROUND
I. Factual Background
On March 15, 2012, Lisette Galarza requested that the Lakeland police
department assist her in retrieving her belongings from the trailer she had
previously shared with Robert Cortes. Lakeland police officers Daniel Carli and
Jordan Hernandez responded to the call, and were advised by dispatch that the
*
Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal Circuit,
sitting by designation.
1
Plaintiff’s excessive force claims arise under the Fourth Amendment, which guarantees an
individual’s right to be free from unreasonable searches and seizures, including the right to be
free from excessive force during a criminal apprehension. Graham v. Connor, 490 U.S. 386,
394–95 (1989).
2
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owner of the trailer was known to be armed with a gun. The officers met Galarza,
who was riding in a car driven by her friend Kimberly Olson, near the entrance to
the trailer park where Cortes lived. Galarza told the officers that she and Cortes
had a history of domestic violence problems and had been arguing. She said that
she wanted to retrieve some personal items from Cortes’s trailer but was afraid to
go into the trailer alone, and that she needed police assistance to ensure there were
no problems. Carli asked Galarza if Cortes had a gun, but Galarza responded that
she did not know.
The officers subsequently followed Olson and Galarza to Cortes’s trailer.
When they arrived, Olson pulled into the driveway and parked close to the front
door of the trailer. The officers parked their police cruisers next to and behind
Olson’s car. Without activating their lights or sirens, the officers exited their
cruisers and positioned themselves in the yard within five to fifteen feet of the
trailer door. Specifically, Carli stood beside a large tree directly in front of and
about fifteen feet away from the door, and Hernandez stood slightly to the right of
Carli, also facing the door and standing about five to ten feet away from it. Olson
remained in the yard, standing beside her car and in a position where she could see
the trailer door.
The door of Cortes’s trailer was approximately three steps off the ground.
Galarza walked up the steps, knocked on the door, and announced that she was
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there with the police to pick up her belongings. She walked back down the stairs
and into the yard. A few minutes after Galarza knocked, Cortes looked through his
blinds at Galarza and the officers. He then opened the door to the trailer and stood
in the doorway with a gun in his right hand. Carli yelled “Gun, gun, gun” and
drew his own gun. Upon hearing this, Hernandez also drew his gun and used his
shoulder mic to signal an emergency on his police radio.
The officers yelled at Cortes to drop the gun, put his hands up, and get down
onto the ground. Although Cortes did not immediately comply, he eventually
placed the gun inside the threshold of the open trailer door, raised his hands up to a
position level with his head, and started to walk down the steps. When Cortes
reached the bottom step, Carli instructed him to get “all the way down on the
ground, lying face down on the ground.” But Cortes did not get down on the
ground; rather, he stopped moving forward and yelled something at Carli. Then,
according to the officers, Cortes turned away from them, took a step up and back
towards the trailer door, and reached with his left hand for the gun that lay in the
doorway.
Both officers told Cortes to “Stop.” Cortes did not touch the gun, and he had
not previously threatened anyone with it. Nevertheless, the officers testified that
they believed Cortes was trying to get the gun and that they feared for their own
lives, as well as for the lives of Galarza and Olson, should he succeed. Both
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officers stated that they fired at Cortes after he turned away from them and as he
was reaching for the gun in the doorframe. Carli fired six times and Hernandez
fired three times. Hernandez hit Cortes once, in the back of his right arm, and
Carli hit Cortes six times, in his back. Cortes fell and landed face down in front of
the steps.
Karenetta Wood, a neighbor who witnessed the incident from her nearby
trailer, provided conflicting but inconsistent testimony about the events
immediately preceding the shooting. Wood testified that Cortes walked out of the
trailer with his hands up “near his shoulders.” She stated that she could tell
Cortes’s hands were empty because she could see his fingers in the air.
Nevertheless, Wood heard an officer say, “Put the gun down.” Wood initially
testified that Cortes was facing the officers with empty, raised hands when he was
shot. But she later admitted that she did not know whether Cortes had turned away
from the officers or made any other movements prior to the shooting, and that she
did not see where the bullets struck Cortes, although she assumed it could not
possibly have been in the back. 2
Carli immediately reported the shooting, and requested EMS assistance.
Galarza began screaming hysterically, yelling at Carli that she would sue him if
2
Olson witnessed the shooting but did not know which direction Cortes was facing when he was
shot or where the bullets struck him. Galarza disappeared after the incident, so neither party was
able to elicit her testimony as to the events surrounding the shooting.
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Cortes died. Unsure whether any more people were in the trailer and with the gun
still lying in the doorway, the officers secured Galarza, took a position of cover,
and redrew their guns. They did not render medical aid to Cortes or make any
other physical contact with him until other officers arrived on the scene. Backup
officers eventually arrived, and they searched and secured the trailer. Cortes died
at the scene.
Dr. Vera Volnikh, a medical examiner, performed an autopsy on Cortes. Dr.
Volnikh concluded that Cortes had suffered seven gunshot wounds, one of which
caused his death. She determined that all seven gunshots entered into the back of
Cortes’s body—six into his lower or middle back and one that entered into the
back of his right arm, exited the front of the arm, and reentered into his right torso.
No entrance wounds were located in the front of the body. The autopsy report
describes the wounds, and the direction of the wound paths. However, Dr. Volnikh
testified that she could not determine the chronological order of the wounds or
exactly what position Cortes was in when he was shot. 3 Pictures taken of the scene
after the shooting show a gun lying in the doorway of the trailer.
3
Based on a toxicology report that was part of the autopsy, Dr. Volnikh also determined that
Cortes was under the influence of methamphetamine, methadone, and other drugs at the time of
his death.
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II. Procedural History
Plaintiff filed a complaint asserting § 1983 excessive force claims against
Carli and Hernandez individually, based on an alleged Fourth Amendment
violation, as well as a state battery claim against the City. Following discovery,
Defendants moved for summary judgment on all of Plaintiff’s claims. The district
court granted the motion. As to the excessive force claims, the court determined
that the physical evidence conclusively established that Cortes had turned back
toward the trailer door just prior to the shooting, rather than getting on the ground
as he was instructed to do, and that it was thus reasonable for the officers to believe
he was reaching for his gun and presented a “serious and potentially deadly
danger” to themselves and others. Accordingly, the court held that the officers’
use of deadly force was reasonable under the circumstances and did not violate the
Fourth Amendment. Based on its conclusion that the use of force was reasonable,
the court likewise granted summary judgment on the state battery claim. See City
of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) (noting that, under
Florida law, force used by police officers during an arrest only constitutes a battery
if it is excessive).
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DISCUSSION
I. Standard of Review
We review a district court’s order granting summary judgment de novo.
Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d 1254, 1257 (11th
Cir. 2014). In conducting our review, we construe the evidence and draw all
inferences in favor of Plaintiff. Id. “Summary judgment is appropriate when
‘there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A mere
‘scintilla’ of evidence” is insufficient to withstand summary judgment. Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Rather, “there must be enough of a
showing that the jury could reasonably find” for Plaintiff. Id.
Specifically with regard to qualified immunity, we acknowledge that the
“facts, as accepted at the summary judgment stage of the proceedings, may not be
the actual facts of the case.” McCullough v. Antolini, 559 F.3d 1201, 1202 (11th
Cir. 2009) (citation and quotation marks omitted). Nevertheless, we view the facts
from Plaintiff’s perspective because the determinative issue on appeal is “not
which facts the parties might be able to prove” but rather, whether “certain given
facts” demonstrate a violation of clearly established law. Crenshaw v. Lister, 556
F.3d 1283, 1289 (11th Cir. 2009). See also Tolan v. Cotton, 134 S. Ct. 1861, 1866
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(2014) (noting “the importance of drawing inferences in favor of the nonmovant”
in the qualified immunity context).
II. Plaintiff’s Excessive Force Claims Against Carli and Hernandez
The district court held that Carli and Hernandez were entitled to qualified
immunity on Plaintiff’s excessive force claims. “Qualified immunity protects
government officials performing discretionary functions from suits in their
individual capacities unless their conduct violates ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)). Plaintiff’s excessive force claims arise out of Cortes’s
shooting. It is undisputed that the officers were engaged in a discretionary duty
when they shot Cortes. It is thus Plaintiff’s burden to show that qualified
immunity is not appropriate. Id. at 995.
To meet this burden, Plaintiff must satisfy a two-part test. See McCullough,
559 F.3d at 1205. First, she must show that the officers’ conduct violated a
constitutional right, the right at issue here being the Fourth Amendment right to be
free of an unreasonable seizure. Id. Assuming a violation, Plaintiff must show the
constitutional right was clearly established at the time of the incident. Id. Viewing
the evidence in the light most favorable to Plaintiff, neither prong is satisfied here.
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A. Constitutional Violation
Plaintiff’s excessive force claim is analyzed under the “objective
reasonableness” standard of the Fourth Amendment. Plumhoff v. Rickard, 134 S.
Ct. 2012, 2020 (2014) (citing Graham v. Connor, 490 U.S. 386 (1989) and
Tennessee v. Garner, 471 U.S. 1 (1985)). Reasonableness in this context depends
on all the circumstances relevant to an officer’s decision to use force and the
amount of force used. See id. We view the circumstances “from the perspective of
a reasonable officer on the scene.” Id. (quotation marks omitted). And we allow
for the fact that officers are often required to make “split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. (quotation marks omitted).
It is reasonable, and therefore constitutionally permissible, for an officer to
use deadly force against a person who poses an imminent threat of serious physical
harm to the officer or others. Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th
Cir. 2005). See also McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1246
(11th Cir. 2003) (finding no constitutional violation where an officer shot a suspect
he “could reasonably perceive” as posing “an imminent threat of violence to the
officer and other bystanders”). The record evidence unequivocally supports the
officers’ claim that Cortes posed such a threat when he was shot. Specifically,
upon looking through his blinds and seeing Galarza with two police officers in the
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yard, Cortes appeared in the doorway of his trailer armed with a gun. After some
hesitation, Cortes initially complied with the officers’ commands to drop the gun
by placing it in the threshold of the open trailer doorway. He then walked down
the trailer steps with his hands up. However, when he reached the bottom step,
Cortes stopped moving forward and failed to get down on the ground, as he was
instructed to do. Carli and Hernandez both testified that Cortes subsequently
turned and took a step back toward the open trailer door, causing them to fear that
he was trying to retrieve the gun he had left there and, consequently, to fire at him.
Their testimony is supported by the autopsy report, which shows that all of the
gunshots that hit Cortes entered the back of his body—either in his back or in the
back of his right arm.
Citing deposition testimony from Olson and Wood, Plaintiff argues that
there is a question of fact as to whether Cortes turned back toward the trailer door
prior to being shot. We are unpersuaded. Olson stated in her deposition that she
did not see Cortes turn his back on the officers, and she suggested at one point in
her testimony that Cortes was shot in the front of his body: an assertion flatly
contradicted by the autopsy report. Moreover, she later clarified that she did not
specifically remember whether Cortes was shot in the front or the back of his body.
Olson explained that she was in shock and in fear for her life when she saw Cortes
come out of the trailer with a gun, causing her to back away and retreat behind her
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car. As a result, Olson never saw Cortes put down the gun he was holding (and in
fact believed that he held the gun throughout the entire encounter), never saw
Cortes put his hands up prior to being shot, did not remember if Cortes walked
down the steps at any time prior to being shot, and did not know if Cortes made
any movements before he was shot or if he was facing the officers when he was
shot.
Wood’s testimony is similarly inconsistent on the essential point for which
Plaintiff cites it. Wood claims to have viewed the shooting and its preceding
events from her trailer 50 to 70 feet away. 4 Wood initially stated that Cortes did
not turn back toward the trailer prior to being shot and that he was facing the
officers when they fired. But like Olson, Wood later clarified that she did not see
what Cortes did prior to being shot, did not know whether he turned or made any
other movements, and could not say for sure whether he put his arms down by his
side because the incident “happened so fast.” She “guess[ed]” Cortes did not turn
away from the officers before he was shot because when she walked by later she
4
Some of Wood’s testimony, however, is contradicted by facts that Plaintiff does not dispute.
Wood testified, contrary to the undisputed facts, that one of the officers knocked on Cortes’s
door rather than Galarza, and that Cortes immediately answered the door. She stated further that
she could see Cortes’s whole body when he opened the door, and that he came out of the door
with his hands in the air and “absolutely nothing” in them, albeit she acknowledged hearing an
officer say, “Put the gun down.”
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saw that he was “laying looking up.”5 She repeatedly acknowledged that she did
not see Cortes get hit and did not know where the bullets struck him, but she also
insisted that he could not possibly have been shot in the back of his body.
In fact, we know from the autopsy report that Cortes was only shot in the
back of his body, meaning Wood was wrong when she testified to the contrary.
Dr. Volnikh determined that Cortes was hit with seven bullets, all of which entered
into the back of his body—six into his back and one into the back of his right arm.
Plaintiff did not present any evidence to refute the autopsy results. Plaintiff relies
heavily on Dr. Volnikh’s testimony that she could not, by examining the bullet
wounds, determine the exact position of Cortes when he was shot. However, we
do not need to know the exact position of Cortes. Rather, all we need to know is
whether Cortes turned away from the officers and toward the trailer door just prior
to being shot. In the absence of any evidence to support Plaintiff’s theory to the
contrary, the autopsy results showing that Cortes was shot seven times in the back
of his body, and only in the back of his body, conclusively establish that he had
turned away from the officers at the time he was shot.
Significantly, Dr. Volnikh stated that although she could not determine
Cortes’s exact position, she could opine as to whether a certain position was
5
As mentioned, Hernandez testified that Cortes fell face down in front of the steps when he was
shot. According to Hernandez, Cortes subsequently was rolled over onto his back.
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possible, if given a hypothetical. Yet Plaintiff’s counsel did not ask Dr. Volnikh
the follow-up question whether it was possible Cortes was facing the officers with
his hands up when he was shot. Nor did Plaintiff present any other evidence—
from a different medical examiner or a ballistics expert, for example—to support
an assertion that Cortes could have been facing the officers with his hands up when
he was shot.
In response to the summary judgment motion, Plaintiff’s counsel theorized
that perhaps the first shot entered into the back of Cortes’s arm while he was facing
the officers with his hands raised, and that Cortes then turned his body away from
the officers to avoid the gunfire, causing the rest of the shots to enter into his
back. 6 The district court properly rejected counsel’s theory, as it was without any
evidentiary basis in the record. We note further that this theory is contradicted by
the unrefuted record evidence that the bullet from this shot entered into the back of
Cortes’s right arm (the tricep) about three inches above the elbow, exited the front
of the arm (the bicep) traveling on an upward trajectory, and then reentered
Cortes’s right torso on a path that continued upward. The placement of the entry
and exit wounds would be physically impossible if Cortes had been facing the
6
Plaintiff raises two additional theories on appeal. As Plaintiff did not present those theories to
the district court, we do not consider them on appeal. See Paylor v. Hartford Fire Ins. Co., 748
F.3d 1117, 1125 (11th Cir. 2014) (“We have said repeatedly that we will not consider an issue
raised for the first time on appeal.”); Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir.
2012) (explaining that “if a party hopes to preserve a claim, argument, theory, or defense on
appeal, she must first clearly present it to the district court”) (internal quotation marks omitted).
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officers with his hands near his shoulders when the shot was fired. In addition, it is
undisputed that it was Hernandez who fired this shot into Cortes’s arm. Hernandez
was standing to the right of the trailer door, such that he would have been facing
Cortes’s left side, when Cortes exited the trailer, walking toward the officers.
Hernandez could not have fired a shot into the back of Cortes’s right arm from this
position unless Cortes had first turned before Hernandez fired.
Given the internal inconsistency of Plaintiff’s proffered evidence on this
issue, and the entirely contradictory physical evidence, a jury could not reasonably
infer from the cited testimony that Cortes was facing the officers, with his hands up
and otherwise complying with their commands, when he was shot. See Scott v.
Harris, 550 U.S. 372, 380 (2007) (“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.”); Kesinger v. Herrington, 381 F.3d
1243, 1249 (11th Cir. 2004) (disregarding eyewitness testimony that was in direct
conflict with the unanimous testimony of other witnesses and with the undisputed
physical evidence). Rather, the record evidence conclusively establishes that, in
defiance of Carli’s order to get down on the ground, Cortes turned away from the
officers and back toward the gun lying in the open trailer doorway just prior to
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being shot.7 Cf. Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013)
(denying qualified immunity where the plaintiff’s account of the events preceding
a police shooting could “reasonably be harmonized” with the forensic evidence).
Based on the record evidence, there is no question that a reasonable officer
could—and likely would—have perceived Cortes as posing an imminent threat of
serious physical harm to themselves and to Galarza and Olson, who were standing
nearby. See Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009)
(concluding that the defendant officers reasonably reacted with deadly force to the
imminent threat posed by a suicidal man who was ignoring their commands to drop
the gun he was holding and to show his hands). The officers were not required to
wait and see what might happen if they did not stop Cortes from reaching the gun
that lay in the open trailer doorway. Long v. Slaton, 508 F.3d 576, 581 (11th Cir.
2007) (“[T]he law does not require officers in a tense and dangerous situation to
wait until the moment a suspect uses a deadly weapon to act to stop the suspect.”).
Their decision to use deadly force was reasonable under the circumstances, and
thus in compliance with the Fourth Amendment.
7
Plaintiff argues in her appellate brief that this version of the events is inconsistent with the
physical evidence because of the way Cortes’s body came to rest, on his back with his feet
closest to the stairs and his head closest to the officers. Plaintiff’s counsel speculates that if the
shooting had occurred the way the officers described, the momentum of the shot would have
pushed Cortes forward. We do not need to address this argument because it has no evidentiary
basis and it was not raised in the district court. But we note that Dr. Volnikh testified that an
individual with wounds similar to Cortes’s, especially if he was under the influence of
methamphetamine as Cortes was, could have run several feet after being shot.
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B. Clearly Established Law
Even assuming a constitutional violation, Carli and Hernandez are entitled to
qualified immunity unless Plaintiff can show that his Fourth Amendment rights
were “clearly established” at the time of the shooting. Plumhoff, 134 S. Ct. at
2023. To be clearly established, the contours of a right must be “sufficiently
definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.” Id. “The salient question is whether the state
of the law at the time of an incident provided fair warning to the defendant[] that
[his] alleged conduct was unconstitutional.” Tolan, 134 S. Ct. at 1866 (quotation
marks omitted and alterations adopted).
Fair warning is commonly provided by materially similar precedent from the
Supreme Court, this Court, or the highest state court in which the case arose. See
Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2012). However, a case directly
on point is not required as long as “existing precedent” placed the “constitutional
question beyond debate.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015)
(quotation marks omitted). See also Youmans v. Gagnon, 626 F.3d 557, 563 (11th
Cir. 2010) (“[J]udicial precedent with materially identical facts is not essential for
the law to be clearly established.”).
As suggested by the above discussion, there is no case law that would have
put Carli and Hernandez on notice that their conduct was unlawful. Plaintiff cites
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Mercado v. City of Orlando, 407 F.3d 1152, 1159–1160 (11th Cir. 2005), for the
general proposition that deadly force cannot be used in a situation that requires less
than deadly force. We agree with that statement of the law, but we do not believe
it applies here. Nor do we believe Mercado could have provided fair warning to
the officers that their conduct was unconstitutional. The plaintiff in Mercado was
threatening suicide, with a cord wrapped around his neck and a knife pointed
toward his heart, when the defendant officer encountered him. Id. at 1154. That
plaintiff made no threatening moves and did not have time to comply with the
officer’s command to drop the knife before the officer used deadly force against
him. Id. at 1154–55, 1157. In contrast, Cortes had time to comply with Carli’s
command to get down on the ground, but instead he defied the officer’s command
by turning back toward the gun lying in the open trailer doorway: a movement the
officers reasonably perceived as threatening. Given those critical distinctions,
Mercado is insufficient to meet Plaintiff’s burden to show that the officers violated
Cortes’s clearly established rights by using deadly force against him under the
particular circumstances of this case. See Perez v. Suszczynski, 809 F.3d 1213,
1220 (11th Cir. 2016) (citing Mercado and noting that “a person standing six feet
away from an officer with a knife may present a different threat than a person six
feet away with a gun”).
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III. Plaintiff’s State Battery Claim
The City cannot be held liable for battery under Florida law unless the force
used by Carli and Hernandez was “clearly excessive.” See Sanders, 672 So. 2d at
47. See also Davis v. Williams, 451 F.3d 759, 768 (11th Cir. 2006) (noting that an
officer’s use of excessive force constitutes a battery under Florida law). The
relevant inquiry is governed by the reasonableness analysis employed above.
Davis, 451 F.3d at 767. Thus, our conclusion that the officers’ use of force was
reasonable under the circumstances precludes Plaintiff’s state battery claim against
the City.
CONCLUSION
For the reasons discussed above, we agree with the district court’s
conclusion that Carli and Hernandez are entitled to qualified immunity on
Plaintiff’s excessive force claims, and that there is no basis for imposing liability
on the City under state law. Accordingly, we AFFIRM the order of the district
court granting summary judgment.
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