Miller v. City of Fort Lauderdale

District Court of Appeal of Florida

Miller v. City of Fort Lauderdale

569 So. 2d 1386, 1990 Fla. App. LEXIS 8948, 1990 WL 181842

CourtDistrict Court of Appeal of Florida

DecidedNovember 28, 1990

DocketNo. 89-2479

StatusPublished

This text of 569 So. 2d 1386 (Miller v. City of Fort Lauderdale) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Miller v. City of Fort Lauderdale, 569 So. 2d 1386, 1990 Fla. App. LEXIS 8948, 1990 WL 181842 (Fla. Ct. App. 1990).

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Opinion

PER CURIAM.

We affirm in part an order dismissing a claim arising out of a police shooting incident, alleging a civil rights violation under 42 U.S.C. § 1983. The complaint fails to allege knowing and intentional or willful, rather than negligent, conduct amounting to an unconstitutional seizure of the victim of the shooting. Cf. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Dodd v. City of Norwich, 827 F.2d 1 (2nd Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); Matthews v. City of Atlanta, 699 F.Supp. 1552 (N.D.Ga.1988). However, the court should not have dismissed the claim with prejudice as plaintiff should be afforded the opportunity to amend. We additionally note that upon such amendment, the questions of whether the defendants’ conduct was unreasonable and constituted excessive force is a fact issue to be resolved by trial, or on a motion for summary judgment, and not by a motion to dismiss. Cf. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.1988); Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985); Spera v. Lee, 728 F.Supp. 366 (E.D.Pa.1990).

The order is affirmed in part but reversed as to prejudice and remanded.

ANSTEAD and STONE, JJ., and OWEN, WILLIAM C., Associate Judge, concur.

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PER CURIAM.

We affirm in part an order dismissing a claim arising out of a police shooting incident, alleging a civil rights violation under 42 U.S.C. § 1983. The complaint fails to allege knowing and intentional or willful, rather than negligent, conduct amounting to an unconstitutional seizure of the victim of the shooting. Cf. Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Dodd v. City of Norwich, 827 F.2d 1 (2nd Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988); Matthews v. City of Atlanta, 699 F.Supp. 1552 (N.D.Ga.1988). However, the court should not have dismissed the claim with prejudice as plaintiff should be afforded the opportunity to amend. We additionally note that upon such amendment, the questions of whether the defendants’ conduct was unreasonable and constituted excessive force is a fact issue to be resolved by trial, or on a motion for summary judgment, and not by a motion to dismiss. Cf. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.1988); Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985); Spera v. Lee, 728 F.Supp. 366 (E.D.Pa.1990).

The order is affirmed in part but reversed as to prejudice and remanded.

ANSTEAD and STONE, JJ., and OWEN, WILLIAM C., Associate Judge, concur.

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569 So. 2d 1386, 1990 Fla. App. LEXIS 8948, 1990 WL 181842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-city-of-fort-lauderdale-fladistctapp-1990.

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