Marcus Cull v. City of Orlando, Florida
700 F. App'x 909
11th Cir.2017Background
- On May 6, 2011, Officers Villaverde and Fleury stopped behind Marcus Cull’s Camaro after a dispatch for a getaway vehicle; a confrontation and a two-mile high-speed pursuit followed.
- Cull abandoned his car, fled on foot, was shot once in the back by Villaverde, taken to the hospital, and later prosecuted on multiple state charges (some acquittals, a mistrial, nol pros on two charges, and Cull pleaded nolo contendere to three charges).
- Cull sued the City of Orlando and Officers Villaverde and Fleury under 42 U.S.C. § 1983 for excessive force, racial discrimination (equal protection), municipal liability (failure to train/supervise), and malicious prosecution.
- The district court granted summary judgment for defendants on equal protection and municipal-liability claims (rejecting a hearsay newspaper article as inadmissible and noting lack of a final policymaker), denied summary judgment on excessive force and malicious prosecution as to aggravated battery with a deadly weapon, and found Cull waived one malicious-prosecution theory by not responding.
- At trial the jury found no excessive force; the court granted JMOL for defendants on malicious prosecution (aggravated battery with a deadly weapon). Cull appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury venire representative cross-section | Venire under‑represents African Americans, violating equal protection and right to jury of peers | Venire was randomly selected; no evidence of systemic exclusion | Affirmed — Cull failed to show distinctive group underrepresentation or systemic exclusion |
| Individual officer racial discrimination (equal protection) | Villaverde’s pre‑shooting language and conduct show racial motivation | No record support for racial motivation; plaintiff cites nothing admissible | Affirmed summary judgment for defendants — plaintiff offered no admissible evidence of racial motivation |
| Municipal liability / failure to train or custom | Newspaper article shows OPD more likely to use deadly force against African Americans, demonstrating a City custom/policy | Article is hearsay and not admissible or reducible to admissible form; no final policymaker identified | Affirmed summary judgment for City — hearsay article inadmissible and inadequate to show policy/custom or final policymaker |
| Malicious prosecution (aggravated battery with deadly weapon) | A reasonable jury could find defendants lacked probable cause and that officers’ statements influenced prosecution | Defendants moved for JMOL at trial; district court granted JMOL | Affirmed — appellate review foreclosed because Cull failed to include trial transcript required to challenge sufficiency of evidence |
Key Cases Cited
- United States v. Grisham, 63 F.3d 1074 (11th Cir. 1995) (standard: de novo review of constitutional challenges to jury selection)
- Sewell v. Town of Lake Hamilton, 117 F.3d 488 (11th Cir. 1997) (standard: de novo review of summary judgment and JMOL)
- United States v. Davis, 854 F.3d 1276 (11th Cir. 2017) (requirements for establishing nonrepresentative jury venire)
- Jackson v. Morrow, 404 F.2d 903 (5th Cir. 1968) (equal‑protection challenge to jury composition requires adequate showing of unconstitutional selection process)
- McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996) (inadmissible hearsay cannot defeat summary judgment)
- Loren v. Sasser, 309 F.3d 1296 (11th Cir. 2002) (appellate review limited when appellant fails to provide trial transcript of contested evidence)