Timothy Clark v. City of Atlanta, Georgia

544 F. App'x 848
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 15, 2013
Docket12-14392
StatusUnpublished
Cited by34 cases

This text of 544 F. App'x 848 (Timothy Clark v. City of Atlanta, Georgia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timothy Clark v. City of Atlanta, Georgia, 544 F. App'x 848 (11th Cir. 2013).

Opinion

PER CURIAM:

Timothy Clark, individually, and Melissa Clark, individually and as the administrator of the Estate of Montellis Clark, appeal the district court’s grant of summary judgment to the City of Atlanta, former Chief of Police Richard Pennington, and Officers Gregory Dubose and Clarence Tosh on their civil rights complaint. For the reasons which follow, we affirm.

Mr. and Ms. Clark filed suit against the officers, the City of Atlanta, and former Chief Pennington asserting federal claims under 42 U.S.C. § 1983 for unreasonable search and seizure, excessive force, false arrest, failure to train and supervise, and under state law for trespass, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligence, and racketeering. At the summary judgment stage, the district court found that the officers were entitled to qualified immunity because they did not violate the Clarks’ constitutional rights. Specifically, the district court determined that the officers were justified in conducting an investigatory stop because they had at least arguable reasonable suspicion that the Clarks might have been engaged, or were about to engage, in criminal activity. Additionally, the district court determined that the officers’ use of deadly force was objectively reasonable under the circumstances. Moreover, because the officers did not violate the Clarks’ constitutional rights, the district court held that the federal claims against the City of Atlanta and former Chief Pennington failed as a matter of law. Finally, the district court concluded that the Clarks had abandoned their state law claims because they failed to respond to any of the arguments the defendants raised in their summary judgment motion.

I

This case arises from a tragic series of events. On July 15, 2008, Officers Dubose and Tosh were in an unmarked police vehicle patrolling an area of Atlanta that had recently been subject to a string of burglaries, including some targeting vacant homes. The officers observed Ms. Clark and her two sons — Timothy and Montel-lis — outside of what appeared to be a vacant home that had no curtains and a lockbox on the door. 1 The officers had concerns that the three individuals might be preparing to burglarize the home and decided to return to the property to investigate.

As the officers drove onto the property, they observed that Montellis Clark had his hands in his pockets, and as such, they decided to approach with their guns drawn. The officers were wearing vests displaying the words “Atlanta Police,” and one of them wore his badge around his neck. They ordered Montellis Clark to remove his hands from his pockets. Mr. and Ms. Clark told Montellis Clark to obey the officers’ order, but he refused to comply-

*851 Montellis Clark eventually pulled out a gun from his pocket and pointed it towards Officers Dubose and Tosh. The officers and Montellis Clark fired their guns. 2 According to Officer Tosh, he continued to fire his gun at Montellis Clark — who was now on the ground — because Montellis Clark had his gun in his right hand and continued to move it, despite Officer Tosh’s commands not to move. The Clarks, however, dispute whether Montel-lis Clark continued to resist after he was on the ground. According to Ms. Clark, as outlined in unsworn statements, Montellis Clark was “already dead” or “down and unarmed” when Officer Tosh reloaded his gun and continued to shoot. See D.E. 1-1 at 1, 4; D.E. 57-2 at 5-6,19.

Montellis Clark died from the gunshot wounds he received. Mr. Clark was shot in the back in the crossfire. 3 Officer Du-bose received a gunshot wound to the face and Officer Tosh suffered a severe chest bruise from a gunshot that was partially stopped by his protective vest.

Shortly thereafter, additional officers from the Atlanta Police Department arrived on the scene and initially placed Mr. and Ms. Clark in handcuffs while they investigated the scene. Ms. Clark was released once it was confirmed that she was not burglarizing the home or involved in the shooting. Mr. Clark was taken to a nearby hospital for treatment.

It was later discovered that the Clarks had not engaged, and were not about to engage, in any criminal activity when Officers Dubose and Tosh first approached. They had permission to be on the property, and were helping Ms. Clark’s boyfriend remodel the vacant home. And, although not known to the officers at the time, and possibly the reason this regrettable encounter escalated as it did, Montellis Clark suffered from paranoid schizophrenia and had been arrested multiple times for violent crimes, including aggravated assault.

II

We exercise plenary review when reviewing a summary judgment order. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir.2007). “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and compels judgment as a matter of law in favor of the moving party.” Brown v. Sec’y of State of Fla., 668 F.3d 1271, 1274 (11th Cir.2012) (citation and internal quotation marks omitted).

In deciding this case, we limit our review to the articulable arguments raised by Mr. and Ms. Clark on appeal. See Arthur Pew Const. Co., Inc. v. Lipscomb, 965 F.2d 1559, 1575 (11th Cir.1992) (“[W]e will not consider issues not raised below and/or not raised on appeal....”). Those arguments are as follows: (1) Officers Du-bose and Tosh failed to argue qualified immunity in their motion for summary judgment; (2) the district court failed to address the individual claims of Mr. and Ms. Clark; (3) the district court incorrectly characterized the encounter as an investigatory stop, which requires reasonable *852 suspicion, rather than as an arrest, which requires probable cause; and (4) the district court erred in granting summary judgment because there were disputed issues of material fact.

Ill

Qualified immunity completely “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, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). To be entitled to qualified immunity, “the public official must show that he was acting within the scope of his discretionary authority at the time the allegedly wrongful acts occurred.” Dur uthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir.2003) (citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002)).

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