George Washington O'neal, Jr., Cross-Appellees v. Dekalb County, Georgia, Cross-Appellants

CLARK, Before KRAVITCH and *, Judges, Circuit and NICHOLS Senior Judge. Circuit KRAVITCH, Judge: Circuit police The survivors of a man killed in a Georgia Counly, shootout in DeKalb brought pursuant this action to 42 U.S.C. the officers involved § shootout, officials, county certain and the County. granted The district court the de- summary judgment fendants’ motion for on ground that the decedent’s constitution- al been violated and there- fore no section 1983 action could be main- tained, F.Supp. 853. We affirm. I. evening

theOn of December decedent, George Washington O’Neal, Sr., patient Hospital a at Doctor’s De- County, Georgia, rampage Kalb went a through hospital and stabbed seven people pocketknife.1 with a Officer Steven Nichols, Jr., Philip *Honorable Senior U.S. Cir 1. The claim that O’Neal’soutburst was Circuit, Judge sitting by given cuit he a Federal caused medication while designation. patient hospital. at the Waits, police officer, County ground. a DeKalb ar- O’Neal died as a result of the hospital response rived at the police to a gunshot wounds. Waits, call. armed his service revolv- O’Neal’s survivors brought this section er, floor, found O’Neal on the second hold- Waits, action Roseberry, the bloody knife. Waits identified him- Director of Public Safety of DeKalb Coun- self as a officer and ordered O’Neal ty, the Chief of Police and Assistant Chief to drop Ignoring his knife. Waits’s de- of Police of DeKalb County, and DeKalb mand, away O’Neal hallway. ran down the County. complaint The alleged that Waits As through Waits chased O’Neal the sec- and Roseberry deprived O’Neal of his corridors, ond floor he observed “a lot of rights constitutional by using excessive piece blood on the floor ... a of intral [sic] against him, and that this use of of person some kind” and a awith severe excessive force was the result of a custom lying stomach Deposi- wound on the floor. policy County.2 Concluding of DeKalb Waits, tion of Steven W. at 54. He also rights that O’Neal’s constitutional had not nursing supervisor noticed that the had a been violated because the officers had not stab Report, wound his back. Police force, used excessive the district court Plaintiffs Exhibit 2. granted summary judgment for all the de- After Waits had chased O’Neal for In separate order, fendants. the district minutes, proximately five Officer Rick Ro- court denied the defendants’ motion for seberry, shotgun, armed with a arrived at attorney’s fees under 42 U.S.C. 1988 and § hospital to assist Waits. Federal Rule of Civil Procedure 11. The also saw “blood all over the floor” and plaintiffs appeal, arguing that the district piece walls and lying “a of human tissue in granting erred summary judgment there the floor in front of me.” [sic] issue excessive force. The de- Deposition Roseberry, of Rickie Emmit cross-appeal fendants from the denial of arrival, 66. Soon after attorney’s fees.

two officers cornered O’Neal at the end of one of the second floor corridors so that standing only O’Neal was six feet from II. Roseberry and between five and six feet 3 claim, To succeed on their section 1983 from Waits. With weapons raised, must establish that O’Neal the officers repeatedly ordered O’Neal to deprived right. of a constitutional drop his knife and lie the floor. Instead McCollan, Baker v. 443 U.S. 99 complying, O’Neal rushed toward Rose- (1979); S.Ct.

berry head; with the knife raised over his Holmes, 263, Shillingford v. 634 F.2d 265 response, both officers weap- fired their (5th 1981). A Cir. Unit The ad- Although ons at by O’Neal. struck both plausible shots, fall, vance two constitutional theories O’Neal did not but rather twist- support action; ed their section 1983 shots, around from the force of the still waving his assert the officers’ knife above his head. use of force Immedi- ately volley shots, against after the right first O’Neal violated his Rose- to sub- shot, berry fired a process second which hit stantive due rights O’Neal and his under in the small of the brought back and him to the fourth amendment.4 We will consider complaint pendent 2. any ed, The also subjects, subject- asserted state State ... or causes to be against Roseberry claims wrong- any and Waits for citizen of the United States ... to the deprivation Hospital any rights, privileges, ful death and Doctor’s for or immu- laws, wrongful malpractice. Upon death and nities secured the Constitution and medical injured granting defendants, party shall summary judgment be liable to the in an ac- tion at law. pendent the district court dismissed the claims prejudice. without complaint alleged 4.The that the defendants had life, equal protection violated O’Neal’s "to pertinent part, provides 42 U.S.C. § 1983 as laws, and freedom from cruel and un- follows: Fifth, punishment Eighth usual under the who, Every person ordinance, statute, any under color of Fourteenth Amendments the United States regulation, usage, custom or Constitution." The district court noted that 656 causing very purpose of cally for the Gilmere separately. See

these assertions 1495, Atlanta, City 1499 774 Atlanta, harm.’” v. 774 F.2d Gilmere City v. banc) (11th Cir.1985)(en (en banc) 1495, 1500-01 claim of (11th Cir.1985) (analyzing F.2d 1028, Glick, due (quoting substantive excessive force under both Johnson amendment), 1033, denied, (2d Cir.), cert. de 414 fourth cert. process and 1970, (1973)), nied, 106 S.Ct. cert. 476 U.S. 38 L.Ed.2d 94 S.Ct. (1986). denied, L.Ed.2d 654 476 U.S. (1986). L.Ed.2d Due Process A. Substantive due The substantive of a any discussion starting point First, they main- argument is two-tiered. in the con due claim substantive gunfire a sus- tain that the use of is Rochin v.

text of abuse Califor constitu- only with a knife was pect armed 96 L.Ed. nia, less harmful tionally excessive because (1952), Supreme Court in which the available. apprehension were methods incriminating evidence obtained held that Second, assuming argue that the first they suspect to a stom by subjecting a criminal constitutional, Rose- volley gunfire was of the inadmissible. As Court pump ach was reject not. We berry’s second shot was due is violat explained, substantive argument. parts plaintiffs’ both in government engages ac ed the when of decen ‘offend those canons at Unquestionably, tions that the situation express the notions cy fairness which evening of Decem Hospital on the Doctor’s English-speaking peoples even toward 15, of suggested the need for the ber charged most heinous of those with the just force. O’Neal application of 169, (quot fenses.’ Id. at 72 S.Ct. at and, at the time he people stabbed several York, New Malinski v. shot, charging Roseberry with was at was 416-17, 781, 788-89, 89 L.Ed. 1029 his head. He refused his knife raised over words, (1945)). government con In other that he respond the officers’ demands to to conscience,” at that “shocks the id. duct surrender, leaving them with the definite 172, 72 209, or even hard S.Ct. at “offend[s] required stop to impression that force was sensibilities,” id., ened 72 S.Ct. at hurting Roseberry or someone him from transgresses due the bounds substantive Moreover, force used the amount of else. process. need for the use of not exceed the did that plaintiffs The maintain force. Rochin, have de- Since the lower courts violated because the rights were O’Neal’s for iden- veloped more definite standards by negoti disarmed him officers could have tifying due violations. substantive using or him a baton ating with by po- determining In whether force used resorting gunfire. to stungun, instead to a constitutional lice officers amounts However, authority hold they point to no “‘the deprivation, a court must consider requires ing that the Constitution force, the rela- application need for the ap a minimum of force officers to use tionship the need and the amount between violent, suspect dangerous who prehend a the extent of the of force that was threatening the lives of the officers inflicted, is injury and whether force was case, In this the use nearby. good effort to maintain or others plied in a faith was not excessive gunfire to disarm O’Neal discipline maliciously and sadisti- restore assumption proceed that the response for sum- to defendants’ motion “[i]n mary judgment, plaintiffs appear brought assert that the fourth and under both claim is unreasonably in viola- O’Neal’s life was seized amendments. fourteenth Accordingly, of the Fourth Amendment." tion the district court remaining claims constitutional As for the analyzed plaintiffs’ claim complaint, con- asserted in their amendment, though it even under the fourth eighth must amendment claim that their cede complaint. In their was not mentioned in their law; equal protection fail as a matter plaintiffs continue to briefs this groundless and does not merit is also claim argue the fourth that O’Neal’s under discussion. Thus, were violated. we will also amendment light danger posed in in light the obvious he of the unusual circumstances fac- addition, others. lives of the undis- ing the officers evening, that Roseberry’s puted that evidence demonstrates the offi- firing of two shots rapid in in succession an guns good cers in fired their a faith effort guarantee attempt apprehen- O’Neal’s O’Neal, stop not out of a de- malicious sion did not constitute excessive force.6 Although injury sire to harm. cause death, inflicted the worst possible,

result of the use of force is but one factor B. The Fourth Amendment determining to be in if considered such also base their section Despite tragic force was excessive. 1983 action on amendment, the fourth outcome of Waits’s and en- provides which pertinent part that “[t]he O’Neal, counter with we remain convinced right people to be secure in then- that did not use excessive force persons ... unreasonable searches attempting short, to subdue him. In then- and seizures shall be not violated.” As the reaction to O’Neal’s violent behavior does recently Court noted Tennessee v. Gar “shockQ not the conscience” or ... “offend ner, U.S. 85 L.Ed.2d Rochin, hardened sensibilities.” (1985), “there be can at 72 S.Ct. at 209-10. apprehension by the use deadly subject seizure to the re reasonableness opinion change Our does be quirement of the Fourth Amendment.” Id. cause fired a second shot at 105 S.Ct. at 1699. Reasonableness is “ plaintiffs O’Neal. As the admitted in their by ‘balancing] determined the and nature argument, brief and at oral Roseberry fired of the quality intrusion individual’s his second “immediately” shot after his Fourth Amendment interests the first, shot, and at the time the second importance of the governmental interests feet, O’Neal was still on his holding his alleged justify 8, to the intrusion.’ Id. at spinning knife and from the force of the (quoting 105 S.Ct. at 1699 United v. States first volley of shots. These undisputed Place, 696, 703, 2637, 462 U.S. 103 S.Ct. facts Roseberry’s convince us that second 2642, (1983)). 77 L.Ed.2d 110 part shot was of his initial to reaction attempt him, O’Neal’s not, test, balancing as Under this stab the plaintiffs’ plaintiffs the believe, would us fourth have a bru amendment claim must fail. Al- tal, gratuitous use of though force a visi O’Neal’s “fundamental interest bly suspect.5 disabled part Viewed as his life need upon,” own be not elaborated his attack, 9, initial reaction to O’Neal’s id. at 105 S.Ct. 1700, at even such a 5. The Roseberry’s dissent, stress that however, second seems pro the confuse back, shot hit O’Neal in the as if this conclusive- finding facts, cess of historical a function of the ly jury, demonstrates that this shot was fired "mali- process with the distinct determining ciously sadistically very purpose whether those historical facts constitute a sub Gilmere, causing harm.” F.2d 774 at As process stantive due or fourth amendment viola admit, however, the Roseberry fired tion, a function of Gilmere, the court. See “immediately" his second shot after his first. At (court F.2d at 1500-01 must determine whether Roseberry the time fired his second he shot there was substantive due by violation could not have known that O’Neal would twist looking factors); to four Garner, Tennessee v. around the force from of the first round of 1, 8, 85 L.Ed.2d 1 consequently shots and be inhit the back the (1985) (reasonableness under fourth amendment Ilius, second shot. the fact that law). The proportionality of the second hit O’Neal shot in the back not does used, force the focus of the prong second Rosebenys transform conduct into a violation Gilmere due test and a factor deter process. of substantive due mining reasonableness under the fourth amend ment, court, is for the jury, not the summary 6. The maintains consider. judgment dissent that this, In a case such as where improper was the because there is a conflict historical in the facts undisputed, are it is duty decide, this regarding proportionality record court's as law, matter of support and "such whether the conflict is for the facts ap ultimate pellants’ finder, fact not this constitutional claim. resolve and then weigh against the fact that O’Neal lost his life.” Simply weighty because may interest be the district counterbalanced court granted the by governmental defendants’ motion for interests in effective summa law ry judgment does not enforcement, mean plain that the as this case. Waits and tiffs’ action was frivolous. As the district deadly used protect force to pointed court out in its order denying fees, themselves people and the hospital at the in ruling on the motion for summary O’Neal, judg and, who was armed as the ment, it great “reviewed a deal of caselaw blood-covered injured floors and bodies on the issue [sic] of when deadly force demonstrated, extremely dangerous. Con- constitutes unreasonable and excessive sidering trying circumstances that the force within the meaning of the Constitu faced, reaction, officers including Ro- tion,” and “did not any find case with a seberry’s shot, second was reasonable and fact situation similar to the one at hand.” hence within the bounds of the fourth agree We with the district court that al amendment.7 though section 1983 suit does III. relief, not merit their causes of action were ar cross-appeal, the defendants On plausible. this, Given say we cannot that discre court abused its gue district the district court abused its discretion in attorney’s fees granting them tion in not denying attorney fees under section 1988 or Rule of Federal under U.S.C. § or Rule 11. Hughes Rowe, v. 449 U.S. Cf. to section 11. Pursuant Civil Procedure 101 S.Ct. at 179 (allegations properly may attorney’s award a district dismissed for failure to state a claim de plain if ‘the prevailing defendants fees served and received careful attention of the unreasonable, frivolous, action tiff’s courts and thus were groundless foundation, though not even without foundation). without ” Hughes brought in bad faith.’ subjective 173, 178, Rowe, 449 U.S. S.Ct. v. reasons, For foregoing judgment (1980)(quoting 66 L.Ed.2d 163 Christians of the district court is AFFIRMED. EEOC, burg Garment Co. may NICHOLS, (1978)). plaintiff Judge, fact that a “The Senior Circuit not itself a ultimately concurring: lose his case is the justification for assessment sufficient Id., Similarly, at 178. of fees.” a join I judgment the Judge and in may require party a or its to counsel opinion. Kravitch’s The dissent would ex- pay attorney’s pre reasonable fees the to tract a triable issue of primarily fact vailing party pursuant to Rule of Federal opinion testimony given by an affidavit filing

CivilProcedure 11 as a sanction for an which would fault some or all of the de- legal factual or action that has no founda trained, fendants for not having if the Clark, tion. See Donaldson county, or the officers having for not been 1551, 1555-56(11th Cir.1987)(en banc). trained, respond to equipment with better Gamer, Citing argue ing the escape that the to when he shot. O'Neal’s at- officers violated O’Neal’s fourth amendment tempt Roseberry very to stab could well be they although because shot himat he was interpreted attempt escape as an to from the trying escape. passage not to The from Gamer rampage through officers and continue his the plaintiffs rely upon that the states as follows: Next, hospital. we note the that have suspect the [I]f threatens the officer with a police misread Gamer to hold a that officer can weapon probable or there is cause to believe longer deadly use force defend to himself that he has involving committed a crime the suspect’s deadly force, a use of unless infliction or threatened infliction of serious suspect trying escape. the is also A more harm, physical deadly may force be used if interpretation quoted pas- sensible above the if, necessary prevent escape, and where sage police may, that is a officer under certain feasible, warning given. some has been circumstances, deadly prevent use force to 11-12, 471 U.S. at 105 S.Ct. at 1701. escape suspect; of a it does not mean that the persuaded by We are argument. this Ini- deadly use of force is limited those instances tially, we take underly- issue with the suspect trying escape. where assumption try- factual that O’Neal was not perfect technique Place, and more to the emer-

gency at hand. It must be recalled that (1983)). Thus, my highway patrolmen these officers were dispute with the majority rests not on the by messages called in frantic radio from appropriate legal standards, but on how the assigned reg- beats. It was not their recited standards applied, are to be and might duty. They ular as well have been whether the weighing process is for this ordinary responded citizens who to a call to court or the ultimate fact finder. desperate human life in some save emer- As I read the majority opinion, a substan- If gency. county should have trained tive due or fourth amendment in- equipped perfectly them for this un- quiry respect to the deadly use of task, foreseen it should have so trained and effectively ends finding with a on equipped all its citizens. A triable issue of either the first or third Gilmere factors: generated by opinions, apparent- fact is not police that danger officer was in ly appreciation arrived at without a full harm or good that he acted in faith. The underlying facts. If the rule were oth- opinion recites the second Gilmere factor— erwise, every litigant possess would relationship “the between the need [for means summary judgment thwart and the amount of the force that was force] him, and we would be back with used”—but it does not examine the facts procedure the old trying every case. relevant in any meaningful thereto way. CLARK, Judge, dissenting: opinion Circuit both the district court’s and the here, majority’s opinion no mention whatso- Although there is little that Of- ever is made plain- of the affidavit ficers Waits and were faced expert. affidavit, tiffs That sworn to difficult, extremely threatening, with an expert police training an who has devel- situation, agree crisis I cannot oped procedures for the United States Jus- properly case was resolved as a matter of Department, tice Depart- Atlanta Police summary on judgment. law Department, ment and the Louisville Police majority is correct on the substan here, states that the officers been legal tive standards. Whether a offi properly, trained had several alternatives person’s right cer’s use of force violates a shooting short of three O’Neal times that depend substantive due does accomplished could have objec- the officers’ force, application ‘the need for the incapacitating disarming tive of him. relationship between the need and the Record, Ill, E See Vol. Tab Exh. at 4-6 amount of force that was the extent (discussing baton, mace, negotiation, use of inflicted, injury and whether force was shotgun service revolver rather than applied good in a faith effort to maintain shooting legs). generalized In at least discipline restore or maliciously and sadisti terms, a number treatises confirm this cally very purpose causing ” See, Goddard, Cope e.g., view. J. & K. Atlanta, harm.’ City Gilmere v. 774 Weaponless Control Law 1495, 1500-01(11th (en Cir.1985) banc) F.2d for Enforce- (1979); Security ment and 23 Personnel J. (quoting Glick, v. Johnson Fried, Weaponless Hubbard & B. (2d Cir.), denied, 1033 414 cert. U.S. Defense: A Law Guide to Non-Vio- (1973)), 94 S.Ct. cert. Enforcement 90-91, (1980); lent Control 164-65 D. denied, Slepecky, Schultz & M. Police (1986). Likewise, Unarmed L.Ed.2d 654 excessive (1973); Tactics 57-63 also A. see force will constitute an unreasonable sei Defense Goldstein, Monti, Green, P. T. Sardino D. in & zure violation of the fourth amendment (1977) importance if Police Crisis Intervention 70-71 governmental “‘the ” (discussing alleged inappropriateness justify interests the intrusion’ outweigh proaching mentally person do not quality ‘the nature and unstable Garner, aggressiveness); of the intrusion.’ for Defense Tennessee v. Institute 1694, 1699, Analyses, Technology: Science and Re- (1985) (quoting L.Ed.2d 1 port United States v. to the President’s Commission on and Administration Law Enforcement (1967) non- (recognizing value of Justice WATER TECHNOLOGIES CORPORA psychot- “[restraining TION, weapons Sys for lethal Water Pollution Control upon attacking bystanders tems, upon Inc., University ic intent and Kansas State Wilerman, self-destruction”); Model Pol- Foundation, F. Plaintiffs-Appel Research 359-60 Agencies icy lees, Manual Police (1976) (discussing use batons and v. temporary disabling). In- chemicals for CALCO, LTD., Defendant-Appellant, County Depart- deed, Police the DeKalb suggesting issued orders ment itself has and mace “under ex- the use of batons

treme, hazardous assault conditions.” Gartner, Defendant. William J. 7; Record, II, Tab Exh. see Vol. 4. There is no mention in also id. at also CORPORA WATER TECHNOLOGIES majority opinion of Officer TION, Sys Water Pollution Control (1) testimony that he was never trained tems, Inc., University and Kansas State disarming an with a knife individual Foundation, Plaintiffs-Appel Research firearm, (2) any weapon use of other than a lees, might realistically say persuad- one what (3) drop weapon, someone to Id., handling Depo- mentally unstable. GARTNER, J. William Roseberry at sition of Rickie Emmit Defendant-Appellant, may virtually While there have been dispute on the historical facts of O’Neal’s Calco, Ltd., Defendant. shooting,1 there conflict in the record on 87-1204, Nos. 87-1205. proportionality the force finder, such conflict is for ultimate fact Appeals, United States Court of weigh not this to resolve and then Federal Circuit. against the fact that O’Neal lost his life. might juryA find that the officers acted 16, 1988. June alternative, unreasonably pursuing in not measures, consti- less drastic and that the deprivation actually

tutional resulted from county’s failure to train them the use usurp find- such measures. To the fact by turning entirely

er’s function the case

on the need for force and/or the officers’

good inappropriate good faith is and a ex-

ample making I of hard cases bad law.

therefore dissent. phrase "virtually dispute" ly away.

1. I use the six feet There is also some conflict because discrepancies way there are some minor between the the two officers described example, record before us. For Rose- Officer position just O’Neal’s before and at the time the berry’s report superiors, to his filed soon after point up slight these shots were fired. I do shooting, indicates that O'Neal was some making any- discrepancies purpose away fifteen feet deposition testimony His from him when he fired. them, thing only to indicate that these nuanc- indicates O’Neal was appropriate es are most for a fact finder to him, proximately eight away feet and Offi- consider. approximate- cer Waits testified that O’Neal was

Case Details

Case Name: George Washington O'neal, Jr., Cross-Appellees v. Dekalb County, Georgia, Cross-Appellants

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 25, 1988

Citation: 850 F.2d 653

Docket Number: 87-8682

Court Abbreviation: 11th Cir.