Lead Opinion
Dontrell Stephens was shot four times by Deputy Sheriff Adams Lin during an encounter in West Palm Beach, Florida, on September 13, 2013. As a result, Stephens now suffers from permanent paralysis.
In an action brought against Deputy Lin as an individual and Sheriff Ric Bradshaw in his official capacity as the sheriff of Palm Beach County, the district court granted summary judgment in favor of Sheriff Bradshaw on the claim against him for Monell liability. Following a trial that lasted from January 25, 2016, until February 4, 2016, a jury awarded Stephens damages totaling $23,148,100,
The parties have cross appealed the district court’s rulings on various motions decided both before and after the trial. We affirm the district court’s grant of summary judgment in favor of Sheriff Bradshaw on the Monell claim brought against him, but we remand for a new trial upon finding that an erroneous jury instruction deprived Deputy Lin of the opportunity to have his claimed defense of qualified immunity considered by the district court.
I.
Most of the facts giving rise to this case are hotly disputed. The parties agree that, on September 13, 2013, shortly after 8:00 a.m., Deputy Lin, who was on police duty monitoring traffic during school bus pickups, observed Stephens, who was then twenty years old, riding his bike on the wrong side of a road in Palm Beach County, Florida. Deputy Lin then decided to stop Stephens, for reasons that the parties dispute. Stephens claims that, prior to this stop, he was holding a cellphone to his ear while riding his bicycle. Deputy Lin claims that he never saw the cellphone, and believed instead that Stephens’ hands were empty.
Upon hearing the sirens of Deputy Lin’s patrol car, Stephens dismounted from his bicycle. Deputy Lin then instructed Stephens to walk toward him while showing his hands. According to Deputy Lin, Stephens turned away from Deputy Lin as he began walking toward him. As soon as Stephens turned away, Deputy Lin shot him four times. Stephens was rendered a paraplegic by his injuries.
Stephens’ lawsuit against Deputy Lin and Sheriff Bradshaw arrived at the United States District Court for the Southern District of Florida in the spring of 2014 after removal from state court.
After discovery was complete, Stephens and each defendant filed separate motions for summary judgment. The district court heard oral argument on all three summary judgment motions, and at that hearing, Stephens agreed to dismiss two of his state law claims against Sheriff Bradshaw. The district court then granted summary judgment in favor of Deputy Lin as to the constitutionality of the stop, and additionally granted summary judgment in favor of Sheriff Bradshaw as to the entire Monell claim against him. The summary judgment motions were denied in all other respects. See Simmons v. Bradshaw, No. 14-80425,
Following the district court’s denial of summary judgment on grounds of qualified immunity, Deputy Lin filed a timely notice of interlocutory appeal. A panel of this Court affirmed, agreeing with the district court that a reasonable jury could find that Deputy Lin violated Stephens’ clearly established constitutional rights by employing excessive force, and further that the allegedly violated right was clearly established by governing case law. See Stephens v. Lin,
On remand, Stephens sought reconsideration of the interlocutory Monell ruling. In support of his motion for reconsideration, Stephens attached as evidence deposition testimony and expert reports from several other excessive force lawsuits brought against the Palm Beach Sheriffs Office (“PBSO”) and its officers. Although the district court held a lengthy hearing on the motion for reconsideration, it ultimately denied the motion without written explanation.
On January 25, 2016, the matter proceeded to trial on the two counts that remained: a § 1983 excessive force claim against Deputy Lin, and a state law battery claim against Sheriff Bradshaw.
Pursuant to the jury’s verdict, the Court entered final judgment for Stephens and against Deputy Lin and Sheriff Bradshaw, jointly and severally, in the amount of $22,431,892.05. Each of the parties timely filed a notice of appeal. Stephens challenges the pre-trial grant of summary judgment dismissing Stephens’ multifaceted Monell claim against Sheriff Bradshaw. Deputy Lin challenges the post-trial denial of his motion for a new trial based on two particular jury instructions he contends were erroneous, including one pertaining to his claimed defense of qualified immunity.
II.
Rule 59(a) of the Federal Rules of Civil Procedure allows a court to grant a new trial “on all or some of the issues.” Fed. R. Civ. P. 59(a). A motion for a new trial may be brought on “various grounds, including[ ] erroneous jury instructions.” Tierney v. Black Bros. Co.,
“Motions for new trial on the basis 5f erroneous and prejudicial jury instructions are within the district court’s discretion and are reviewed for abuse of discretion.” Gowski v. Peake,
■ Iri conducting this examination, we review jury instructions de novo “to determine whether they misstate the law or mislead the jury.” Conroy v. Abraham Chevrolet-Tampa, Inc.,
We review a grant of summary judgment de novo, applying the same standard as the court below. See Southern Waste Sys., LLC v. City of Delray Beach,
III.
A government official faced with a civil rights claim brought pursuant to 42 U.S.C. § 1983 is entitled to raise the affirmative defense of qualified immunity. Qualified immunity generally shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
Qualified immunity is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth,
Entitlement to qualified immunity is for the eourt to decide as a matter of law. Specifically, a court considering a defendant’s claim of qualified immunity must address the following question of law:
[W]hether the legal norms allegedly violated by the defendant were clearly established at thé time of the challenged actions or, in cases where the distinct court has denied summary judgment for the defendant on the ground that even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.
Mitchell,
Though entitlement to qualified immunity presents a question of law, resolution- of this question can sometimes turn on issues of fact. We have previously explained why and under what circumstances a defendant’s entitlement to qualified immunity may remain unresolved even into the trial phase of litigation:
Where it is not evident from the allegations of the complaint alone that the defendants are entitled to qualified immunity, the case will, proceed to the summary judgment stage, the most typical juncture at which defendants entitled to qualified immunity are released from the threat of liability, and the burden of further litigation. Even'at the summary judgment stage, not all defendants entitled to the protection of the qualified immunity defense will get it. The ones who should be given that protection at the summary judgment stage are those who establish that there is no genuine issue of material fact preventing them from being entitled to qualified immunity. And that will include defendants in a case where there is some dispute about the facts, but even viewing the evidence most favorably to the plaintiff the law applicable to that set of facts was not already clearly enough settled to make the defendants’ conduct clearly unlawful. But if, the evidence at the summary judgment stage, viewed in the light most favorable to the plaintiff, shows there are facts that are inconsistent with qualified immunity being granted, the case and the qualified immunity issue along with it will proceed to trial.
Johnson,
If a government official moves for summary judgment asserting entitlement to qualified immunity, then the relevant facts are construed in the light most favorable to the non-movant—ie., the plaintiff—and the court should decide the issue based on those facts. See Mitchell,
If the official’s motion does not succeed, however, then his qualified immunity defense remains intact and proceeds to trial. The facts as viewed for summary judgment purposes are no longer binding, and the jury proceeds to find the relevant facts bearing on qualified immunity. See id. at 527,
At trial, the court uses the jury’s factual findings to render its ultimate legal determination as to whether it would be evident to a reasonable officer, in light of clearly established law, that his conduct was unlawful in the situation he confronted:
Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and- in those situations courts will not hold that they have violated the Constitution. Yet, •even if a court were to hold that the officer violated the [Constitution] ...,
[Supreme Court precedent] still operates to grant officers immunity for reasonable mistakes as to the- legality of their actions.
Saucier v. Katz,
“Where the defendant’s pretrial motions are denied because there are genuine issues of fact that are determinative of the qualified immunity issue, special jury interrogatories may be used to resolve those factual issues.” Cottrell,
Because a public official who is put to trial is entitled , to have the true facts underlying his qualified immunity defense decided, a timely request for jury interrogatories directed toward such factual issues should be granted. Denial of such a request would be error, because it would deprive the defendant who is forced to trial of his right to have the factual ■ issues underlying his defense decided by the jury.
We do not mean to imply, of course, that district courts should submit the issue of whether a defendant is entitled to qualified immunity to the jury. Qualified immunity is a legal issue to be decided by the court, and the jury interrogatories should not even mention the term. Instead, the jury interrogatories should be restncted to the who-what-when-where-ivhy type of historical fact issues.
When a district court has denied the qualified immunity defense prior to trial based upon its determination that the defense turns upon a genuine issue of material fact, the court should revisit that factual issue when, and if, the defendant files a timely Fed. R. Civ. P. 50(a) or (b) motion.
Id. at 1487-88 (emphases added) (citations omitted).
The facts of the instant case involved contested factual issues bearing on Defendant’s entitlement to qualified immunity. In its order disposing of the parties’ motions for summary judgment, the district court expressly reserved the qualified immunity question for later determination:
If it were to credit Stephens’ account of these events, a reasonable jury clearly could find that Deputy Lin violated his constitutional rights by employing excessive force. Yet, Deputy Lin would still be entitled to qualified immunity if the law were not clearly established. Saucier,533 U.S. at 201 ,121 S.Ct. 2151 (stating that if a constitutional right would have been violated under the plaintiffs version of the facts, the court must then determine whether the right was clearly established).
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Even though this Court has concluded that Deputy Lin is not entitled to qualified immunity on Stephens’ excessive force claim at the summary judgment stage, Deputy Lin is not precluded from pursuing the qualified immunity defense at the trial. See Vaughan v. Cox,343 F.3d 1323 , 1333 (11th Cir. 2003). Should the jury choose not to credit (in whole or in part) Stephens’ version of the facts, or should the facts not be presented at trial as alleged here on summary judgment, the qualified immunity analysis may change.
Simmons v. Bradshaw, No. 14-80425,
Whether a specific use of force is excessive or unreasonable depends on factors such as the nature of any offense involved, whether a citizen poses an immediate violent threat to others, including the police officer, and whether the citizen resists or flees. In assessing these factors, you should consider whether an officer’s belief that a citizen is posing an immediate violent threat is an objectively reasonable belief under the circumstances, notwithstanding that it is a mistaken belief. Where an officer’s mistaken belief that a citizen poses an immediate and deadly threat is objectively reasonable under the circumstances,- then that officer’s use of deadly force is not excessive or unreasonable. On the other hand, where an officer’s mistaken belief that a citizen poses an immediate and deadly threat is not objectively reasonable.under the circumstances, then that officer’s use of deadly force is excessive or unrea.sonable.
This instruction is problematic not only because it is an incorrect statement of the law, but moreover because it effectively delegated resolution of the issue of qualified immunity to the jury—presumably as to both facts and Jaw—and thus the. district court never decided whether Deputy Lin was entitled to his claimed defense of qualified immunity.
Consistent with Supreme Court precedent, we have noted that the factual issues bearing on the excessive .force inquiry are distinct from the legal issues bearing on a defendant’s entitlement to qualified immunity:
It makes perfect sense to conclude, as the Supreme Court did in Saucier, that with such claims the merits issue and the qualified immunity issue are distinct, so that the existence of a valid Fourth Amendment excessive force claim is not inconsistent with qualified immunity. In other words, a defendant officer could use force in making an arrest that is later judged to be excessive enough that it violates the Fourth Amendment, but if prior decisions did not clearly establish that the use of that amount of force in those circumstances was constitutionally excessive, the defendant officer would be entitled to qualified immunity.
Johnson,
This instruction was erroneous for two reasons. First, it is not the province of the jury to decide a defendant’s entitlement to qualified immunity. See Cottrell,
Evidently, the district court believed that the jury instruction at issue properly covered both excessive force and qualified immunity. In its order denying in' part the defendants’ motion for a new trial, the district court stated that, “[i]n light of the jury instructions given in this case—which the jury is presumed to have understood and followed—the jury’s verdict reflects an implicit finding that Deputy Lin did not commit an objectively reasonáble mistake when he shot Dontrell Stephens.” Simmons v. Bradshaw, No. 14-80425,
Because of these errors, Deputy Lin was not afforded the opportunity to have his claimed defense of qualified immunity determined by the court, as he was entitled to have. Furthermore, the errors were not harmless because this is not a case in which “the jury verdict itself, viewed in the light of the jury instructions, and any interrogatories that were answered by the jury, indicate without doubt what the answers to the refused interrogatories would have been, or make the answers to the refused interrogatories irrelevant to the qualified immunity defense.” Johnson,
IV.
With respect to Stephens’ Monell claim, the district court made thorough factual findings' supporting its grant of summary-judgment in favor of Sheriff Bradshaw and against Stephens. These findings included the following:
(1) “Stephens ... has failed to demonstrate prior constitutional violations with respect to PBSO officer-involved shootings,” Simmons,2014 WL 11456548 at *12;
(2) “Stephens has not shown ongoing constitutional violations or even meritorious complaints regarding officer-involved shootings that Sheriff Bradshaw simply ignored,” and “the record shows that Deputy Lin never had a complaint, let alone a meritorious complaint, regarding the use of deadly force” id. at *15;
(3) “Beyond alleging deficiencies in the investigation of his own shooting, Stephens has not produced any evidence showing that PBSO’s investigative and disciplinary procedures were generally deficient,” and “he has not identified any prior constitutional violation that went unpunished,” id. at *16;
' (4) “[Djespite the failure of PBSO investigators to interview Stephens, the shooting was nonetheless reviewed by PBSO Internal Affairs and by its violent crimes personnel, and it was then separately investigated by the State Attorney’s Office,” id. at *18; and
(5) “[Njeither Sheriffi ] Bradshaw’s statement in defense of Deputy Lin nor the subsequent investigation of the shooting can support Stephens’ ratification theory of liability, as neither occurred before the shooting and neither could have been the cause of the injury,” id. at *19.
In making these findings, the district court noted- correctly that “[settlement agreements ... are not competent evidence that Sheriff Bradshaw condoned the actual use of excessive force,” id. at *12 n.12, and carefully analyzed memoranda from the State Attorney’s Office “providing] critical context for—and rebut[ting]—Stephens’ suggestion that Sheriff Bradshaw’s defenses of his deputies’ actions were unjustified,” id. at *11. The district court also noted that “the Stephens shooting was the first time that Deputy Lin had ever fired his weapon in the line of duty,” id. at *15, and further that “Deputy Lin testified that he understood that Sheriff Bradshaw holds him and other deputies acco'untable for their actions,” id. at *10.
As the district court seems to have implicitly observed, the most difficult hurdle for Stephens to mount in order to succeed on his Monell claim against Sheriff Bradshaw is causation. The only causation argument Stephens offers is that “Sheriff Bradshaw’s routine and uncritical ratification of his deputies’ prior use of force ‘was causally connected’ to Lin’s shooting of Stephens, because it. sent a message to Lin and his deputies that allegations of excessive force would not be investigated.” Appellant’s Br. at 54. Even accepting arguendo that Sheriff Bradshaw “routinely and" uncritically” ratified his deputies’ use of force, it is difficult to understand how anything Sheriff Bradshaw allegedly did (or failed to do) could have been the “moving force of the constitutional violation” in this case. See Monell v. Dep’t of Soc. Servs.,
Without competent evidence establishing a pattern or practice of constitutional violations, Stephens’ shooting must be evaluated as a single incident. Even assuming that Stephens’ shooting was unconstitutional, this incident alone does not establish a custom of tolerating excessive force. See Salvato v. Miley,
On a broader scale, the Supreme Court has made clear that the' bar to establish municipal liability is very high. See, e.g., Connick v. Thompson,
IV.
For the foregoing reasons, the judgment below is AFFIRMED in part and VACATED in part, and the case is hereby REMANDED for a new trial.
Notes
. Stephens' counsel, Evett Simmons, Esquire, served as a co-plaintiff in this case in her capaciiy as guardian of the property of Dont-rell Stephens. For the sake of simplicity, we refer throughout this opinion only to "Stephens,” rather than to "Plaintiffs" collectively-
. The parties stipulated, and the district court ordered, that if the jury found that Deputy Lin had committed a battery, then Sheriff Bradshaw would be held vicariously liable. We refer throughout this opinion to "Deputy Lin” and "Sheriff Bradshaw” individually, as each pertinent issue and defense pertains to these defendants separately.
. Deputy Lin also appeals the district court’s denial of his request for a jury instruction that an officer’s actions must be viewed from tpe perspective of a reasonable officer on the scene, and not with 20/20 hindsight vision. The instruction given at trial stated that "[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” We find no merit in Deputy Lin’s argument that he was prejudiced because this instruction did not include the phrasé "rather than with the 20/20 vision of hindsight.”
. It is not always necessary to follow this procedure, because
the failure to give requested jury interrogatories may not be error, or [the] error may be harmless, where the jury verdict itself, viewed in the light of the jury instructions, and any interrogatories that were answered by the jury, indicate without doubt what the answers to the refused interrogatories would have been, or make the answers to the refused interrogatories irrelevant to the qualified immunity defense.
Johnson,
. Throughout trial proceedings, defense counsel repeatedly objected to the district court’s handling of the qualified immunity question, thereby preserving the issue for appeal.. See Defs.’ Cross Reply Br. at 3 (citing numerous ' instances on the record where "defense counsel stated and re-stated the defense’s objection to the proposal offered by the trial court in regard to how to address the qualified immunity issue in this case”). We find that Deputy Lin "made [his] position clear to the court previously and further objection would [have been] futile,” and further that consideration of this issue "is necessary to ‘correct a fundamental error or prevent a miscarriage of justice.’ ” Farley v. Nationwide Mut. Ins. Co.,
. The district court denied Deputy Lin’s request for a special interrogatory designed to address the factual component of his qualified immunity defense, apparently out of concern that creating too much space between the excessive force and qualified immunity inquiries could lead to inconsistent verdicts. This concern was unfounded, however, because finding excessive force does not preclude entitlement to qualified immunity. See Anderson,
. Had the jury been afforded the opportunity to make specific factual findings relevant to the qualified immunity inquiry—including, for example, whether Stephens had committed a traffic infraction on his bicycle; whether Stephens dismounted from his bicycle and complied with Deputy Lin’s commands following the stop; and whether Stephens possessed any weapons, threatened Deputy Lin, or attempted to flee—the district court could (and should) have then determined, as a matter of law, “whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.” Mitchell, 472 U.S, at 528,
Dissenting Opinion
dissenting:
I would not disturb the jury’s verdict on Dontrell Stephens’ excessive force claim brought pursuant to 42 U.S.C. § 1983. The jury determined that Deputy Adams Lin used excessive force against Stephen's in violation of the Fourth Amendment by shooting him four times at close range— rendering him a paraplegic—after stopping him for riding his bicycle on the wrong side of the road. Appealing the denial of their motion for a new trial, Deputy Lin and Sherriff Bradshaw argue that the district court abused its discretion by improperly instructing the jury in two ways: (1) by not allowing them to present a special interrogatory to the jury, asking whether Deputy Lin made a reasonable mistake; and (2) by refusing to give the jury a “20/20 hindsight” instruction, to let the jury know that it must judge the officer’s reasonableness “at the time of the events, not from hindsight.”
But rather than address these specific issues, the majority opinion sets aside the jury’s verdict for a different reason—that the jury instructions given did not accurately reflect the law, and that Deputy Lin was deprived of the opportunity to have his qualified immunity defense considered by the district court. Although the panel questioned counsel at oral' argument about whether qualified immunity was improperly presented to the jury, the issue was neither briefed, nor appealed.
I dissent because the jury instructions did properly state the law. And I disagree with the majority’s determination that the district court improperly relinquished consideration of Deputy Lin’s entitlement to qualified immunity to the jury rather than retain it for consideration by the district court judge himself. Lastly, I disagree with the majority’s resolution of the Mo-nell claim.
I. THE JURY INSTRUCTIONS
As we previously stated in the prior appeal, a reasonable jury could find that Deputy Lin violated Stephens’ clearly established constitutional rights by employing excessive force, and by finding that the allegedly violated right was clearly established by governing law. See Stephens v. Lin,
Whether a specific use of force is excessive or unreasonable depends on factors such as. the. nature of any offense involved, whether a citizen poses an immediate violent threat to others, including the police officer, and whether the citizen resists or flees. In assessing these factors, you should consider whether an officer’s belief that a citizen is posing an immediate violent tlireat is an objectively reasonable belief under the' circumstances, ' nothwithstanding that it is a mistaken'belief. Where an officer’s mistaken belief that a citizen poses an immediate and deadly threat is objectively reasonable under the circumstances, then that officer’s use of deadly force is not excessive or unreasonable. On the other hand, where an officer’s mistaken belief that a citizen poses an immediate and deadly threat is not objectively reasonable under the circumstances, then that officer’s use of deadly force is excessive or unreasonable.
The majority finds this instruction “problematic not only because - it is an incorrect statement of the -law, but'moreover because it effectively delegated resolution of the issue of qualified immunity to the jury—presumably as to -both facts and law—and thus the district' court never decided whether Deputy Lin was entitled to his claimed defense of qualified immunity.” Maj. Op. at 1166. I disagree on both accounts. The instruction is not an incorrect statement of the law, nor can it reasonably be construed as an improper delegation of the qualified immunity determination to the jury. Whether Officer Lin made an objectively reasonable mistake in believing that Stephens posed a threat is for the jury to decide in making its excessive force determination.
This instruction is also consistent with Supreme Court precedent addressing facts to be. considered in excessive force cases. See Saucier v. Katz,
Qualified immunity’s clearly-established-law requirement, however, looks at whether “the officer’s mistake as to what the law requires is. reasonable, [and when it is reasonable] the officer is entitled to the immunity defense.” Saucier,
The trial court could not have separated the question of whether a mistake was reasonable from the question of whéther the-force was excessive. Doing so would contravene Supreme Court precedent. Id. (stating that determining the reasonableness of a mistake is part of the excessive force question). If Deputy Lin’s mistake about whether Stephens posed a threat was reasonable, the force he used would not be considered- as excessive. And if Deputy Lin’s mistake about whether Stephens posed a threat was unreasonable, the force he used would be considered excessive, See id. That is exactly what the given instructions said.
The court did not err in submitting the factual reasonableness determination to the jury because it had to submit it to the jury for it to determine whether there was excessive force. It is up to the jury to determine whether an officer’s conduct was reasonable in light of the factual circumstances. Here, the jury determined that the force used by Deputy Lin was unreasonable. It is then up to the trial judge to decide whether qualified immunity is applicable- by asking whether the officer’s conduct was reasonable in light of clearly established law. See Lee v. Ferraro,
'Here, the trial judge did just that. The judge relied on the jury’s factual determination—that Deputy .Lin’s conduct was unreasonable and excessive—to find that Deputy Lin violated Stephens’ Fourth Amendment right to be free from excessive force.- The court, not the jury, determined that Stephens’ right to be free from excessive force was clearly established under existing law. In any event, the district court had already considered, and rejected, Lin’s qualified immunity claim— twice—when the defendants raised it in their motion for judgment as a matter of law and again in the renewed judgment as a matter of law,
Therefore, I have no quarrel with the formalities of the district court’s resolution of Deputy Lin’s entitlement to qualified immunity. And taking the deferential nature of the abuse of discretion standard into account, I see no reversible error. See Gowski v. Peake,
Nonetheless, the issues briefed were whether the district court abused its discretion by: (1) not allowing the defendants to present special interrogatories asking whether Deputy Lin made a reasonable mistake; and (2) not allowing the defendants to present the “20/20 hindsight” instruction in an effort to let the jury know that it must judge the officer’s reasonableness at the* time of the ■ events, and not from hindsight.
First, the district court did not err when it declined to provide the jury with a-mistaken belief interrogatory, which would have asked:
Do you find by a preponderance of the evidence that Deputy Adams Lin made an objectively reasonable mistake when he perceived that Dontrell Stephens threatened Deputy Adams Lin- with a firearm and posed an imminent threat of death or serious physical harm at the time that Deputy Adams Lin shot Dont-rell Stephens?
This proposed interrogatory was covered by the given instructions. And there can be no error when “the trial court[] refus[es] to give a requested instruction ... where the substance of that proposed instruction was covered by another instruction which was given.” Pesaplastic, C.A. v. Cincinnati Milacron Co.,
Second, the district court also did not err when it declined to provide the following “20/20 hindsight” instruction to the jury:
The 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. This determination must include allowances for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. The Fourth Amendment reasonableness standard analysis is an objective one. The question is whether the officer’s actions are objectively reasonable in light of the facts and circumstances confronting the officer, without regard to his underlying subjective intent or motivation. Therefore, under the Fourth Amendment, an excessive force case does not involve inquiry into subjective concepts like malice and sadism.
In declining to give the instruction, the district court found that (1) the instruction was argumentative; (2) the instruction was not included within the Eleventh Circuit’s Civil Pattern Jury Instructions; (3) the argument was permitted to be made to the jury during closing arguments; and (4) even if excluding it was error, the error was harmless. I agree with the Majority opinion’s conclusion that there was no abuse of discretion here given the specific and thorough determinations made by the district court. See Maj. Op. at 1161-62.
II. THE MONELL CLAIM
We review de novo the trial court’s order granting summary judgment. S. Waste Sys., LLC v. City of Delray Beach,
Ordinarily, a governmental entity cannot be held liable for the unconstitutional actions of its employees under 42 U.S.C. § 1983. However, a governmental entity can be held liable if a plaintiff can show that the unconstitutional act at issue is a result of a policy or custom promulgated by the entity. Monell v. Dep’t of Soc. Servs.,
Here, because the district court found that Stephens established a triable issue of a constitutional violation, only the custom and causation prongs of a Monell claim are relevant. If Stephens has offered sufficient evidence to establish those prongs, he is entitled to proceed to trial on his Monell claim. I would reverse the district court’s dismissal of the Monell claim because Stephens offered sufficient evidence of a custom of tolerating excessive force, and of a causal link between that custom and this shooting to survive a motion for summary judgment.
Stephens presented substantial evidence of a custom within the Sherriffs Office. Specifically, the evidence of a custom of tolerating excessive force consists of (1) a number of police shootings that resulted in financial settlements but no officer discipline,
First, Stephens presented adequate evidence of a lack of discipline within the Sherriffs Office. Between September 2009 and September 2013, the Sheriffs Office entered into 16 separate settlements of lawsuits alleging improper use of force. While settlements are not admissions of guilt, they are also not proof of innocence; thus reaching a settlement agreement does not mean that the Sheriffs Office’s use of force was appropriate. Under the summary judgment standard, these settlements can, at the least, serve as evidence that the Sheriffs Office used force on at least 16 occasions. See Griffin v. City of Opa-Locka,
Second, Stephens presented adequate evidence of the. Sherriff s Office’s biased investigations. Stephens submitted evidence of. post-shooting press releases and statements by Sheriff Bradshaw, most of which state that an investigation, is in its “preliminary stages” or is “ongoing.” Sheriff Bradshaw’s declarations that the offi-c'ers acted legally despite the existence of an “ongoing investigation” indicate that the outcome of the investigations were pre-determined..
For example, in a 2008 press release on a shooting by a deputy, the Sheriffs Office stated that “[t]he deputy discharged his firearm multiple times in self-defense” yet in the next paragraph stated, “This case is under investigation.” In another circumstance, only a day after a Sheriff s Office deputy fatally shot a 16-year-old boy, the Sheriffs Office issued a press release stating that “[t]he deputy was justifiably -in fear of his life.” And in á 2012 press release, the Sheriffs Office stated that it was investigating a deputy-involved shooting, but that same day Sheriff Bradshaw told The Palm Beach Post that “[t]he suspect was going to shoot our deputy, we had to shoot first.”
These statements of confidence are not necessarily false. However, when we1 take this evidence in the light most favorable to Stephens, it shows a prejudgment that likely influenced the outcome of investigations."
Third, Stephens also presented evidence from his own shooting, which cements his Monell claim. See Salvato,
Sheriff Bradshaw and every other Sheriffs Office employee involved in this shooting unequivocally endorsed Deputy Lin’s actions and adopted his .version of events— notwithstanding the availability of contradictory video evidence. Sheriff Bradshaw publicly , declared, on the morning of the shooting, that Deputy Lin “did the right thing.” Specifically, Sheriff Bradshaw stated:
The guy bailed off the bike, ran between two parked cars. The deputy bailed out of his car, yelling to him the whole time, “Stop, put up your hands,. stop.” The deputy goes around the other side of the car to cut him off and apprehends , him. That’s -when the guy came out with the dark object and started to turn towards the deputy.... There’s nothing in the rules of engagement that says we have to put our lives in jeopardy to wait to find out what this is and get killed.
The video contradicts this statement. First, Stephens did not run between two parked cars—he walked off his bike towards Deputy Lin in a slow, non-threatening manner after following Deputy Lin’s command for Stephens to come towards him. Second, Stephens did not pull out a dark object at that point—from the time he got off the bike until he was shot, Stephens had his phone in his right hand. And third, Stephens did not turn toward' Lin—he turned away. This is all apparent from the video, which was available for immediate review. Moreover, ⅛ a statement later that day, the Sheriffs Office said it was investigating the shooting, while also declaring:
The subject was riding a bicycle, threw the bike down and attempted to run away. The deputy gave verbal commands to “STOP,” “Let me see your hands.” The subject pulled a dark object from his waist band and was shot three times by the deputy. The subject was transported to St. Mary’s Medical Center and is listed in critical condition.
But, again, this is contradicted by video evidence.
Detective Smith, the officer in charge of investigating the shooting, watched the dash camera video of the shooting before taking Deputy Lin’s sworn statement. Yet when Deputy Lin made statements that contradicted the video, Smith did not question Deputy Lin’s assertions. When confronted during his deposition about why he did not challenge Deputy Lin about the inconsistencies between Deputy Lin’s statement and the video, Smith stated that he did not see the cellphone in Stephens’ right hand during the dash camera video because they were “going so fast,” and he “just didn’t notice it.” In fact, Smith testified that he did not realize that Stephens was holding the cellphone in his right hand, or that Deputy Lin’s sworn statement was inconsistent with the video evidence, until the day of his civil deposition—nearly a full year later.
And one of the most troubling aspects of this whole investigation is that no one ever interviewed Stephens about his version of events. Neither investigator reviewing the shooting even tried to contact or interview Stephens. They also never contacted any witness to the shooting, or my witness to attest to whether Stephens actually impeded traffic—a charge Stephens denies and a charge that formed the only other basis for pulling Stephens over besides the dubious claim that Stephens was “unfamiliar.” The Sheriffs Office offered no explanation for these investigatory shortcomings, as is noted in the district court’s summary judgment order.
Yet despite all of this evidence, the district court found that a custom did not exist because Stephens did not definitively put forward evidence of a prior unconstitutional shooting. However, the uneonstitu-tionality of Stephens’ shooting alone could arguably be enough to find a custom of tolerating excessive force. See City of Oklahoma City v. Tuttle,
Looking at the totality of the evidence and drawing inferences in Stephens’ favor, a jury could find that the Sheriffs Office had a custom of tolerating the use of excessive force.
Stephens also presented adequate evidence to establish a causal link. The causal link here was shown by the depositions of Deputy Lin himself and Chief Tucker, a use of force expert for the plaintiffs side.
Chief Tucker provided sworn expert testimony that Sheriff Bradshaw’s “routine and uncritical ratification of his deputies’ use of force was causally connected” to Deputy Lin’s use of deadly force against Stephens. His expert affidavit was based not only upon the standard operating procedures at Sheriffs Office, which sent a message to all deputies that excessive force would not be properly investigated, but also upon Deputy Lin’s admissions of what he knew about those procedures.
Chief Tucker opined that Deputy Lin’s admitted knowledge of how past officer involved shootings were handled, plus Deputy Lin’s own experience with use of force alerts and incidents, likely convinced Deputy Lin that nothing would happen to him if he overreacted in using deadly force. Chief Tucker’s expert report states that Sheriff Bradshaw’s routine ratification of his deputies’ actions sent a message to his deputies, and to the Internal Affairs investigators, that excessive force would be tolerated.
Considering the custom evidence and the causal link testimony under the summary judgment standard, Stephens presented enough evidence to create a triable issue of fact.
I respectfully dissent.
. Sheriff Bradshaw did not put any evidence into the record regarding any prior discipline. The district court cited to another case to supply evidence that an officer had been disciplined for his use of force. However, we can- ■ not take judicial notice of a fact found true in another action, without more. See United States v. Jones,
. Chief Tucker was the Chief of Police for 23 years in various cities including Tallahassee, Florida, In addition, he served as the Vice-Chairman of the Florida Criminal Justice Standards and Training Commission for three years, which was responsible for establishing minimum standards for the employment and training of all Florida law enforcement officers, including the training of officers on use of force.