Alicia Torres v. Sheriff Rod Howell

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14646
____________________
ALICIA TORRES,
Surviving Heir and Parent of deceased
Peter Torres,
ALFONSO TORRES,
Surviving Heir and Parent of deceased
Peter Torres,
Plaintiffs-Appellants,
versus
SHERIFF ROD HOWELL,
Individually and in his official capacity as
Sheriff of Colquitt County,
JOSHUA LUKE,
Individually and in his official capacity as
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2 Opinion of the Court 20-14646
an employee of the Colquitt County Sheriff's Office,
Defendants-Appellees,
COLQUITT COUNTY SHERIFF'S OFFICE, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cv-00033-WLS
____________________
Before ROSENBAUM, TJOFLAT, Circuit Judges, and STEELE, * District
Judge.
PER CURIAM:
Plaintiffs-Appellants Alicia and Alfonso Torres appeal from
the portion of the district court’s order granting summary judg-
ment in favor of Defendant-Appellee Deputy Joshua Luke on their
claim of excessive force resulting from the shooting death of their
20-year-old son Peter Torres. We have carefully reviewed the
* The Honorable John E. Steele, United States District Judge for the Middle
District of Florida, sitting by designation.
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20-14646 Opinion of the Court 3
record, including the recording of the incident, and have had the
benefit of oral arguments. Though this is a tragic case, for the rea-
sons discussed below, we must affirm the district court’s judgment.
I.
“We review de novo a grant of summary judgment based
on qualified immunity, construing the facts and drawing all infer-
ences in the light most favorable to the nonmoving party.” Powell
v. Snook, 25 F.4th 912, 920 (11th Cir. 2022) (citing Feliciano v. City
of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013)). The facts of
this case are largely established by recorded conversations with a
Sheriff’s Office dispatcher and the audio and video recording from
a body camera worn by the deputy. We review de novo the vide-
otape evidence that was presented to the district court at the sum-
mary judgment stage. Scott v. Harris, 550 U.S. 372, 380-81 (2007).
Where the video does not answer all the questions or resolve all
the details of the encounter, we view the evidence in the light most
favorable to Appellants as the non-moving party. Johnson v. City
of Miami Beach, 18 F.4th 1267, 1269 (11th Cir. 2021).
II.
Plaintiffs-Appellants Alicia and Alfonso Torres resided in
Moultrie, Georgia, with their three children, including decedent
Peter Torres (Torres). On February 4, 2017, their daughter called
911 to report that her brother Peter was belligerent and began to
batter and assault those around him. Deputy Joshua Luke (Deputy
Luke) and Deputy Joshua Perry (Deputy Perry) (collectively, the
“Deputies”), two uniformed officers of the Colquitt County Sher-
iff’s Office, were dispatched to the residence.
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4 Opinion of the Court 20-14646
The 911 dispatcher notified the deputies that a domestic dis-
pute occurred and Torres was “going to be physical with everyone
in the house,” he may have a weapon (possibly a knife), and he was
possibly under the influence of narcotics. Minutes later, the dis-
patcher reported that Torres was chasing after the occupants of the
residence and that the occupants had left the home. As the Depu-
ties drove to the residence, another deputy reported over the radio
that he had responded to the same residence about a week prior
regarding a physical domestic dispute. Before the Deputies arrived
at the residence, the dispatcher advised that Torres was no longer
chasing the family members, did not have any weapons, and had
“trashed the house.”
Deputies Luke and Perry arrived at the Torres residence in
separate marked patrol vehicles. At that point, everyone except
Torres had fled the home. Deputy Luke then walked to the rear of
the house, while Deputy Perry walked to the front door. Deputy
Luke was equipped with a body camera, which recorded the events
that followed.
Upon entering the backyard, Deputy Luke saw Torres sit-
ting in a chair with his head slumped down. Deputy Luke spoke to
Torres, saying “Boss man, do not move.” Getting no reaction,
Deputy Luke repeated this instruction, twice exclaiming, “Don’t
move.” Instead of complying, Torres raised his head, leaned for-
ward, grabbed a metal tray, and threw it at Deputy Luke. In re-
sponse, Deputy Luke drew his handgun and twice stated to Torres
“Let me see your hands.” Torres was approximately 20 feet away
at the time and did not comply with Deputy Luke’s instructions.
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20-14646 Opinion of the Court 5
Torres then stood up, and Deputy Luke instructed Torres to
“quit moving.” Torres picked up a small propane tank that was on
the ground and began to run towards Deputy Luke. Deputy Luke
sidestepped away from Torres and began running towards his pa-
trol car, intending to use it as a barrier between himself and Torres.
The video shows that sixteen seconds elapsed between the time
Deputy Luke first made visual contact with Torres and the time
that Torres began charging Deputy Luke.
As he was retreating, Deputy Luke attempted to contact
Deputy Perry via radio, and he looked in Torres’s direction. Dep-
uty Luke saw that Torres was still running towards him. Torres
was running with his hands by his side, so Deputy Luke could not
determine whether Torres had a weapon in either one of his hands.
The video shows though, by that time, Torres had dropped the
propane tank. Deputy Luke instructed Torres to “quit,” but Torres
did not slow his speed, change direction, or give any indication that
he intended to stop pursuing Deputy Luke. When Torres got
within two to three feet of him, Deputy Luke turned and fired his
handgun once, striking Torres in the chest. The shot proved to be
fatal. The video establishes that three seconds elapsed between the
time Deputy Luke began retreating to his patrol vehicle and the
time he fired his handgun.
II.
The only issues before us relate to the district court’s grant
of Deputy Luke’s motion for summary judgment on the federal ex-
cessive force claim under 42 U.S.C. § 1983 based upon qualified
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6 Opinion of the Court 20-14646
immunity. As relevant to this appeal, the district court found that
Deputy Luke’s actions were objectively reasonable under the cir-
cumstances and therefore did not constitute the excessive use of
force in violation of the Fourth Amendment. The district court
also found that qualified immunity applied to the facts of the case.
Appellants argue that the district court erred because there were
genuine issues of material fact as to whether Deputy Luke used ex-
cessive force, whether a constitutional violation had occurred, and
whether Deputy Luke was entitled to qualified immunity.
Both Fourth Amendment principles and qualified immunity
principles are well-established. As the Supreme Court has summa-
rized:
Our case law sets forth a settled and exclusive frame-
work for analyzing whether the force used in making
a seizure complies with the Fourth Amendment. See
Graham [v. Connor,] 490 U.S. [386, 395], 109 S. Ct.
1865 [(1989)]. As in other areas of our Fourth Amend-
ment jurisprudence, “[d]etermining whether the
force used to effect a particular seizure is ‘reasona-
ble’” requires balancing of the individual's Fourth
Amendment interests against the relevant govern-
ment interests. Id., at 396, 109 S. Ct. 1865. The oper-
ative question in excessive force cases is “whether the
totality of the circumstances justifie[s] a particular
sort of search or seizure.” [Tenn. v.] Garner, [471 U.S.
1,] 8–9, 105 S. Ct. 1694.
The reasonableness of the use of force is evaluated
under an “objective” inquiry that pays “careful
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20-14646 Opinion of the Court 7
attention to the facts and circumstances of each par-
ticular case.” Graham, supra, at 396, 109 S. Ct. 1865.
And “[t]he ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision
of hindsight.” Ibid. “Excessive force claims . . . are
evaluated for objective reasonableness based upon
the information the officers had when the conduct oc-
curred.” Saucier v. Katz, 533 U.S. 194, 207, 121 S. Ct.
2151, 150 L. Ed. 2d 272 (2001). That inquiry is dispos-
itive: When an officer carries out a seizure that is rea-
sonable, taking into account all relevant circum-
stances, there is no valid excessive force claim.
Cnty. of Los Angeles, Cal. v. Mendez, 137 S. Ct. 1539, 1546–47
(2017). “Whether an officer has used excessive force depends on
‘the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an imme-
diate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.’”
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (quoting Gra-
ham, 490 U.S. at 396).
As we have recently stated as to qualified immunity:
The qualified immunity doctrine protects an officer
unless at the time of the officer's supposedly wrongful
act the law “was already established to such a high de-
gree that every objectively reasonable” officer in his
place “would be on notice” that what he was doing
was “clearly unlawful given the circumstances.” Pace
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8 Opinion of the Court 20-14646
v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002).
The doctrine protects “all but the plainly incompe-
tent or one who is knowingly violating the federal
law.” Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir.
2012) (quotation marks omitted). For qualified im-
munity to apply, an officer “must first establish that
he acted within his discretionary authority.” Morton
v. Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013).
Once the officer does that, “the burden shifts to the
plaintiff to show that qualified immunity is not appro-
priate.” Penley v. Eslinger, 605 F.3d 843, 849 (11th
Cir. 2010).
Powell, 25 F.4th at 920.
The parties agree that Deputy Luke was acting within his
discretionary authority at all relevant times. Therefore, the burden
shifted to Appellants. See Penley, 605 F.3d at 849. “To overcome
a qualified immunity defense where the defendant acted within his
discretionary authority, the plaintiff must show that the defend-
ant’s actions not only violated one or more constitutional rights,
but also that it was clearly established at the time that those specific
actions did so.” Powell, 25 F.4th at 920.
Drawing all reasonable inferences in favor of Plaintiffs-Ap-
pellants, we conclude that the district court properly found there
are no disputed material facts and that consideration of all the rel-
evant circumstances demonstrates that Deputy Luke’s level of
force was not constitutionally unreasonable.
A family member had called 911 to report that Torres had
committed assault and battery against the occupants of his
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20-14646 Opinion of the Court 9
residence. As the Plaintiffs-Appellants concede, Deputy Luke was
told that “Peter Torres was terrorizing people in the house” and
was “physical with everyone.” Deputy Luke was first told by the
dispatcher that Torres may have a knife, then that Torres did not
have any weapons. Deputy Luke stated, however, that he knew
that the dispatcher had no way of knowing whether Torres had a
weapon at the time Deputy Luke encountered him. This is partic-
ularly true since Torres had unfettered access to the house and its
contents after his family fled the home and before the Deputies ar-
rived.
Importantly, during a rapidly evolving, nineteen-second en-
counter, Torres threw a tray in defiance of Deputy Luke’s com-
mand not to move, ignored repeated commands to show his hands
and stop moving, and despite Deputy Luke pointing his firearm,
Torres stood up and aggressively charged Deputy Luke. Even as
Deputy Luke attempted to retreat behind his patrol car, Torres
continued to pursue Deputy Luke, coming within an arm’s reach
of Deputy Luke and his drawn weapon.
Even if Deputy Luke had known for sure Torres did not
have a knife or any other weapon, it is undisputed that Torres ig-
nored repeated commands, charged Deputy Luke, and got close
enough that he would have been able to obtain the deputy’s fire-
arm and use it against the Deputies. Torres’s possible intoxication
and Deputy Luke’s larger physical stature do not diminish the se-
verity of Torres’s threatening conduct or the reasonableness of the
Deputy’s response. Considering the unpredictability of Torres’s
behavior and his aggressive movement towards Deputy Luke,
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10 Opinion of the Court 20-14646
“[w]e think that [Deputy Luke] need not have taken that chance
and hoped for the best.” Long v. Slaton, 508 F.3d 576, 583 (11th
Cir. 2007). Torres’s conduct established the danger of imminent
bodily injury if he had reached Deputy Luke.
Even supposing the district court was incorrect in finding no
Fourth Amendment violation, the record establishes that Deputy
Luke did not violate any clearly established law, and therefore is
entitled to qualified immunity. As City of Tahlequah, Okla. v.
Bond, 142 S. Ct. 9, 11 (2021) stated: “It is not enough that a rule be
suggested by then-existing precedent; the rule's contours must be
so well defined that it is clear to a reasonable officer that his con-
duct was unlawful in the situation he confronted.” Id. (quoting
D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (internal quotation marks
omitted)). “Qualified immunity attaches when an official's conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” White v.
Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (internal quotation
marks omitted). A right is clearly established when it is “suffi-
ciently clear that every reasonable official would have understood
that what he is doing violates that right.” Mullenix v. Luna, 577
U.S. 7, 11 (2015) (per curiam) (internal quotation marks omitted).
Although “this Court's case law does not require a case directly on
point for a right to be clearly established, existing precedent must
have placed the statutory or constitutional question beyond de-
bate.” White, 37 S. Ct. at 551 (alterations and internal quotation
marks omitted). This inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.”
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Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (internal
quotation marks omitted). See also Rivas-Villegas, 142 S. Ct. at 7-8.
Appellants have not identified any Supreme Court or Elev-
enth Circuit precedent finding a Fourth Amendment violation un-
der similar circumstances. Indeed, the case law supports the use of
deadly force in comparable circumstances. See, e.g., Hammett v.
Paulding Cnty., 875 F.3d 1036, 1051 (11th Cir. 2017) (finding the
use of deadly force was reasonable when Hammett disobeyed an
officer’s instruction to show his hands and moved aggressively to-
wards the officer, despite finding out after the fact that Hammett
did not have a deadly weapon); Jean-Baptiste v. Gutierrez, 627 F.3d
816, 821 (11th Cir. 2010) (deadly force was reasonable when the
officer was “suddenly confronted” by the suspect and “forced to
decide in a matter of seconds whether to deploy deadly force”);
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1246 (11th
Cir. 2003) (per curiam) (concluding an officer’s use of deadly force
was objectively reasonable where the suspect posed an imminent
threat of violence to the officer because he ignored the officer’s re-
peated commands and charged an armed officer with a stick); see
also DeLuna v. City of Rockford, 447 F.3d 1008, 1013 (7th Cir. 2006)
(an officer “need not wait until there is a physical struggle for con-
trol of his weapon before a situation presents an imminent danger
of serious physical injury.”).
While Torres’s death is awful, for the foregoing reasons, the
judgment of the district court is affirmed.
AFFIRMED.