Joanne Cooper v. John Rutherford

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2020
• Docket: 17-15535
• Status: Unpublished

Opinion

Case: 17-15535 Date Filed: 09/29/2020 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15535 ________________________

D.C. Docket No. 3:10-cv-00695-HES-PDB

JOANN COOPER, individually and as next friend of D.C.,

Plaintiff - Appellant,

CARL COOPER, as a parent and natural guardian of A.C., a minor,

Consolidated Plaintiff,

versus

JOHN RUTHERFORD, in his official capacity as Sheriff of the Consolidated City of Jacksonville and Duval County, Florida, RYAN BLACK, individually, DARRIES GRIFFITH, individually, JESSIE YORK, individually, JASON LEDERMAN, individually, et al.,

Defendants - Appellees. Case: 17-15535 Date Filed: 09/29/2020 Page: 2 of 14

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 29, 2020)

Before JORDAN, TJOFLAT, and HULL, Circuit Judges.

PER CURIAM:

Joann Cooper and her children were in their car in the drive-through lane of a

Wendy’s restaurant in Jacksonville when a bank robbery suspect, with gun in hand,

forced his way into the car. During an ensuing shootout, Jacksonville police officers

fired dozens of shots at the car, and Ms. Cooper and her son were both seriously

injured by the gunfire. See Cooper v. Rutherford, 503 F. App’x 672, 673 (11th Cir.

2012).

Ms. Cooper, on behalf of herself and her son, sued the Jacksonville Sheriff in

his official capacity, and several Jacksonville officers in their individual capacities.

She asserted claims for Fourth Amendment and Fourteenth Amendment violations

under 42 U.S.C. § 1983, and state-law claims for negligence and battery.

The district court granted qualified immunity in favor of the individual

officers, with the exception of Officer Black, who had fired 24 shots. When the case

first came before us on interlocutory appeal, we ruled that Officer Black was entitled

to qualified immunity on the § 1983 claims. Assuming that Officer Black violated

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the constitutional rights of Ms. Cooper and her son, we ruled that (a) pre-existing

law did not “clearly establish that [Ms. Cooper and her son] were seized when

Officer Black’s bullet accidentally struck them during the confrontation with the

armed bank robber;” (b) the case was not one in which the general Fourth

Amendment rule prohibiting excessive force applied with obvious clarity; and (c)

there was no case law clearly establishing that Officer Black violated the Fourteenth

Amendment’s substantive due process guarantee. See Cooper, 503 F. App’x at 675-

77.

When the case returned to the district court, the Sheriff moved for summary

judgment on the official capacity claims. The district court granted the Sheriff’s

motion for summary judgment. See D.E. 122. On the Fourth Amendment claim,

the district court concluded that Ms. Cooper and her son could not show that they

were subject to an unreasonable seizure when they were hit by police gunfire. See

id. at 10–12. On the substantive Fourteenth Amendment claim, the district court

concluded that Ms. Cooper and her son could not show that the Sheriff or the officers

intended to cause them harm. See id. at 13–14. On the state-law claims, the district

court concluded that sovereign immunity applied because challenged actions were

discretionary. See id. at 14–16.

On appeal, Ms. Cooper and her son challenge all of these rulings in favor of

the Sheriff. Following oral argument, and a review of the record, we affirm.

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Because we write for the parties, we assume their familiarity with the record, and set

out only what is necessary to explain our decision.

II

We review a district court’s summary judgment order de novo. See Troupe v.

Sarasota Cty., Fla., 419 F.3d 1160, 1165 (11th Cir. 2005). In exercising this plenary

review, “[w]e use the same legal standards as the district court and draw evidentiary

inferences in favor of the nonmoving party.” Reyes v. Maschmeier, 446 F.3d 1199,

1202 (11th Cir. 2006) (citation omitted).

III

The § 1983 official capacity claims against the Sheriff—the Fourth

Amendment claim and the Fourteenth Amendment substantive due process claim—

are claims against the sovereign, i.e., the government entity. See Lewis v. Clarke,

137 S. Ct. 1285, 1291 (2017); Kentucky v. Graham, 473 U.S. 159, 165 (1985);

Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999). A municipality cannot

be “vicariously liable under § 1983 for [its] employees’ actions.” Connick v.

Thompson, 563 U.S. 51, 60 (2011). Instead, “[a] municipality or other local

government may be liable under [§ 1983] if the governmental body itself ‘subjects’

a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such

deprivation.” Id. (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 692

(1978)). Specifically, a plaintiff “must ultimately prove that the [municipality] had

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a policy, custom, or practice that caused the deprivation.” Hoefling v. City of Miami,

811 F.3d 1271, 1279 (11th Cir. 2016). Liability will not attach “unless a municipal

‘policy’ or ‘custom’ is the moving force behind the constitutional violation.” City of

Canton v. Harris, 489 U.S. 378, 379 (1989).

The district court, given its merits rulings, did not address whether there was

a municipal policy, custom, or practice that caused the alleged constitutional

violations. See D.E. 122 at 14. But on appeal the Sheriff again argues, as an

alternative ground for affirmance, that there was no showing of any such policy,

custom, or practice. See Br. for Appellee at 27–35. Ms. Cooper contends that there

are material issues of fact on this issue. See Br. for Appellants at 29–34. As

explained below, we agree with the Sheriff. Assuming that the officers violated the

Fourth and Fourteenth Amendment rights of Ms. Cooper and her son by firing their

weapons and striking them with some of their shots, the record does not create a jury

question on municipal liability.

A

Ms. Cooper is proceeding on a failure to train theory. She argues that the

Jacksonville Sheriff’s Office was deliberately indifferent to the lives of its citizens

by not training its officers on the proper protocol for discharging firearms when

innocent bystanders are present. She asserts that the need to train officers on the use

of deadly force in hostage situations is so obvious, and the potential for killing or

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injuring an innocent civilian is so high, that the Sheriff was deliberately indifferent

to her constitutional rights and those of her son.

“[T]he inadequacy of police training may serve as the basis for § 1983

[municipal] liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come into contact. . . .

Only where a municipality’s failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a

shortcoming be properly thought of as a city ‘policy or custom’ that is actionable

under § 1983.” Harris, 489 U.S. at 388–89.

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious consequence of his action.

Thus, when city policymakers are on actual or constructive notice that a particular

omission in their training program causes city employees to violate citizens’

constitutional rights, the city may be deemed deliberately indifferent if the

policymakers choose to retain that program.” Connick, 563 U.S. at 61 (citations and

internal quotation marks omitted). See also Pembaur v. City of Cincinnati, 475 U.S.

469, 483 (1986) (“[M]unicipal liability under § 1983 attaches where—and only

where—a deliberate choice to follow a course of action is made from among various

alternatives by the official or officials responsible for establishing final policy with

respect to the subject matter in question.”).

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“A municipality’s culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” Connick, 563 U.S. at 61. Nevertheless,

there may be “rare” failure to train cases in which “the unconstitutional

consequences of failing to train [are] so patently obvious” that a municipality may

be liable under § 1983 “without proof of a pre-existing pattern of violations.” Id. at

64. The Supreme Court has theorized that one such scenario may be a failure to train

officers who are armed on how to deal with fleeing felons, given the frequency of

that particular occurrence. See id. at 63–64.

B

For a number of reasons, we conclude that the Sheriff is entitled to summary

judgment on the § 1983 municipal liability claims of Ms. Cooper and her son.

First, “[t]o establish a ‘deliberate or conscious choice’ or . . . ‘deliberate

indifference,’ a plaintiff must present some evidence that the municipality knew of

a need to train and/or supervise in a particular area and the municipality made a

deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346,

1350 (11th Cir. 1998). Because “decisionmakers can hardly be said to have

deliberately chosen a training program that will cause violations of constitutional

rights” unless they have “notice that a course of training is deficient in a particular

respect,” a “pattern of similar constitutional violations is ordinarily necessary to

demonstrate deliberate indifference for purposes of failure to train.” Connick, 563

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U.S. at 62.

Ms. Cooper has not presented any evidence of prior similar incidents where

bystanders or hostages were injured due to officers exchanging gunfire with a

suspect. Because there was “no evidence of a history of widespread prior abuse . . .

[that] put the [S]heriff on notice of the need for improved training or supervision,”

Wright v. Sheppard, 919 F.2d 665, 674 (11th Cir. 1990), there is no jury question on

the matter of deliberate indifference.

Second, this is not the “rare” failure to train scenario where the likelihood for

constitutional violations is so high that the need for training would be obvious. As

Ms. Cooper acknowledges, the Jacksonville Sheriff’s Office had a policy generally

providing that officers should not discharge their weapons into moving vehicles

except as a last resort (i.e., when all other opportunities have been exhausted, to

prevent death or great bodily harm to the officer or other persons, or to prevent the

escape of a fleeing felon who would pose an imminent threat of death or great bodily

harm). That same policy instructed officers to “exercise reasonable caution in order

to avoid unnecessarily endangering the lives of bystanders. When possible, officers

should give consideration to the backdrop, bystanders, and location.” See D.E. 115-

1 at 48–49.

We recognize that this general admonition did not specifically address the

discharge of weapons in a hostage situation involving a non-moving vehicle. But

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given the general instruction that officers should use reasonable caution to avoid

unnecessary danger to others when deciding whether to discharge their weapons,

Ms. Cooper and her son cannot create a jury question on deliberate indifference. We

note that Officers Black and Griffith were administratively found to have violated

the “response to resistance” and “deadly force” policies of the Jacksonville Sheriff’s

Office, and resigned in lieu of termination. So this was not a case of a municipality

turning a blind eye to a first-time violation of its policies. Although we do not

necessarily agree with the Sheriff that his policies “exceed” constitutional standards,

see Br. for Appellee at 31 n.17, we do conclude that they do not demonstrate

deliberate indifference. Cf. Ross v. Town of Austin, 343 F.3d 915, 918 (7th Cir.

2003) (Ҥ 1983 imposes on municipalities no constitutional duty to provide law

enforcement officers with advanced, specialized training [e.g., hostage negotiation

and tactical combat training] based upon a general history of criminal activity [e.g.,

armed robberies] in the community”).

IV

Florida law generally prohibits the state or a municipality from being “held

personally liable in tort or named as a party defendant in any action for any injury

or damage suffered as a result of any act, event, or omission of action in the scope

of her or his employment or function.” Fla. Stat. § 768.28(9)(a). The Florida

Supreme Court has ruled that § 768.28(9)(a) provides immunity from suit, rather

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than simply from liability. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012).

Florida, however, has waived its sovereign immunity (and that of its

municipalities and subdivisions) “under circumstances in which the state or agency

or subdivision, if a private person, would be liable to the claimant, in accordance

with the general laws of [the] state.” See Fla. Stat. § 768.28(1). Even if a complaint

contains adequate allegations showing that a private person would be liable in tort,

the sovereign immunity waiver does not apply if the challenged act was

“discretionary” rather than “operational.” See Lewis v. City of St. Petersburg, 260

F.3d 1260, 1262 (11th Cir. 2001).

Under Florida law, an “operational” act is “one not necessary to or inherent in

policy or planning, that merely reflects a secondary decision as to how those policies

or plans will be implemented,” while discretionary acts involve “an exercise of

executive . . . power such that, for the court to intervene by way of tort law, it

inappropriately would entangle itself in fundamental questions of policy and

planning.” Kaisner v. Kolb, 543 So. 2d 732, 737 (Fla. 1989). Indeed, the Florida

Supreme Court has explained that the state and its subdivisions have “discretionary

power to enforce compliance with the law, as well as the authority to protect public

safety.” Trianon Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 919

(Fla. 1985).

Ms. Cooper argues that the district court erred in concluding that the so-called

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police-emergency exception entitled the Sheriff to sovereign immunity. She

contends that, given the facts here, the actions of the responding officers were

operational and not discretionary. Because the officers’ actions should have been

viewed as operational, she continues, the district court erred in applying sovereign

immunity.

As a general matter, the Florida Supreme Court has stated that “[t]he decision

of whether to enforce the law by making an arrest is a basic judgmental or

discretionary governmental function that is immune from suit.” Everton v.

Willard, 468 So.2d 936, 937 (Fla. 1985). Moreover, it has also said that in

emergency circumstances sovereign immunity applies to acts of decision-making

that would normally be considered “operational” but become “discretionary.” See

Kaisner, 543 So. 2d at 738 n.3 (“The way in which government agents respond to a

serious emergency is entitled to great deference, and may in fact reach a level of

such urgency as to be considered discretionary and not operational.”) (dicta). To fall

within the so-called police-emergency exception,

the serious emergency must be one thrust upon the police by lawbreakers or other external forces, that requires them to choose between different risks posed to the public. In other words, no matter what decision police officers make, someone or some group will be put at risk; and officers thus are left no option but to choose between two different evils. It is this choice between risks that is entitled to the protection of sovereign immunity in appropriate cases, because it involves what essentially is a discretionary act of executive decision- making.

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City of Pinellas Park v. Brown, 604 So. 2d 1222, 1227 (Fla. 1992) (dicta) (footnote

omitted). See also Rodriguez v. Miami-Dade Cty., 117 So. 3d 400, 408 (Fla. 2013)

(explaining the narrow nature of the exception, and noting that the Florida Supreme

Court has never applied it to provide immunity).

Here, the officers responded to the fleeing armed suspect out of necessity and

took swift action to prevent harm. Given the choices available to them—allowing

an armed suspect to escape with multiple hostages and potentially starting a police

chase or keeping an armed suspect with hostages (who might in any event be

harmed) in a car in a restaurant drive-through—we conclude that the police

emergency exception applies. Under Florida law, “the actual execution of a hot-

pursuit policy is entitled to a high degree of judicial deference consistent with reason

and public safety.” Pinellas Park, 604 So.2d at 1226 (dicta). See also id. at 1226–

27 (“special deference is given to pressing emergencies, and . . . certain police

actions may involve a level of such urgency as to be considered discretionary and

not operational”).

Although the Florida Supreme Court has never applied the police-emergency

exception, see Rodriguez, 117 So.3d at 407–08, the Third District has done so in a

case that is similar to the one here. In Robles v. Metropolitan Dade County, 802

So.2d 453 (Fla. 3d DCA 2001), a police officer shot at a man who had hijacked a

school bus, and flying debris hit one of the children on the bus, causing him to lose

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sight in one eye. At the time of the shooting there were 13 children and several

adults on the bus, and the police had been told that the hijacker potentially had an

explosive device. The officer who fired at the hijacker said he did so because he

feared for his safety and the life of the children on the bus. See id. at 454. The

child’s parents sued the county, alleging that the officer had acted negligently in

shooting at the hijacker under the circumstances. An expert for the parents opined

that the officer, though confronted with an emergency, and faced with various

courses of action—“each of which posed a potential threat to the public”—acted

negligently in shooting at the hijacker. See id. The trial court nevertheless granted

summary judgment in favor the county, ruling that it was entitled to immunity under

the police-emergency exception, and the Third District affirmed. Applying City of

Pinellas Park, the Third District concluded that the officer was faced with choosing

between courses of action that would each put someone at risk: “‘It is this choice

between risks that is entitled to the protection of sovereign immunity in appropriate

cases, because it involves what essentially is a discretionary act of executive decision

making.’” Id. at 455 (quoting City of Pinellas Park, 604 So.2d at 1227).

In the absence of any conflicting case law from the Florida appellate courts,

we follow Robles and apply the police-emergency exception. The officers here were

confronted with an emergency and faced difficult choices, each of which presented

risks to themselves, to the hostages, and to the public at large. We conclude,

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therefore, that sovereign immunity shields the Sheriff from liability on the state-law

battery and negligence claims.

Having found no grounds for reversal, we affirm the district court’s grant of

summary judgment to the Sheriff.

AFFIRMED.