Brenda L. JACKSON, as Surviving Mother and Administratrix of the Estate of Willie Jerry Jackson, deceased, Quentin K. Wimbish, Toddrick R. Williams, Plaintiffs-Appellees, v. Willie T. SAULS, Ivant T. Fields, Waine L. Pinckney, Defendants-Appellants, City of Atlanta, John Does 1-5, Defendants.
No. 98-8980.
United States Court of Appeals, Eleventh Circuit.
March 17, 2000.
206 F.3d 1156
As the district court noted, the statement made by Mr. Huntsman “appears to be a comment on the stability of [Mr.] Huntsman‘s company rather than a contractual offer of lifetime employment.” Perhaps it can be viewed as a prediction, made by an enterprising entrepreneur, eager to gain entrance into a new industry. Perhaps it can be viewed as puffing, by an ambitious businessman, proud of his reputation for fairness among his employees. What it most definitely cannot be viewed as, is a clear and unequivocal offer of lifetime employment in Alabama. As we conclude that Wesson does not meet the first prong of the three-prong test of Birmingham-Jefferson County, we need not discuss the other two.
V. CONCLUSION
The judgment of the district court is AFFIRMED.
Albert M. Pearson, III, Moraitakis, Kushel & Pearson, Atlanta, GA, for Plaintiffs-Appellees.
Before ANDERSON, Chief Judge, and COX and HULL, Circuit Judges.
HULL, Circuit Judge:
These
I. FACTUAL BACKGROUND
This case concerns a shooting incident involving Jerry Jackson, Quentin Wimbish, and Toddrick Williams (collectively the “Plaintiffs“) and Officers Sauls, Fields, and Pinckney (collectively the “Defendants“).1 Although the parties’ versions of the shooting incident differ drastically, the summary judgment posture of this case requires us to consider first the events in the light most favorable to Plaintiffs. We then examine Defendants’ qualified immunity defenses.
A. The Initial Encounter
At approximately 11:00 a.m. on December 7, 1995, Plaintiffs Jackson, Wimbish, and Williams and their friend Corey Dean, young African-American males, were in Jackson‘s blue Pontiac 6000, bearing Georgia tag number 8BK94. No one was
That day, Defendants Sauls, Pinckney, and Fields, also African-American males, were operating undercover in plain clothes and were in an unmarked gray Pontiac 6000 traveling east on Bankhead Highway. As members of a Field Investigation Team (“Team“) of the Atlanta Police Department (“APD“), they were assigned to the 1995 APD Crime Suppression Task Force. The Task Force‘s mission was to seek out street crimes on a broad and proactive basis.2 Defendants were on their way to meet with their supervisor to receive their assignments for the day. Defendant Fields, the senior officer in the group, was driving the gray Pontiac 6000, was armed with a nine millimeter pistol, and was wearing a black cap, a gray plaid shirt, blue jeans, and boots. Defendant Sauls was in the front passenger seat, was armed with a nine millimeter pistol and a .38 caliber revolver, and was wearing a green sweatshirt, blue jeans, and boots. Defendant Pinckney was sitting in the back seat, was armed with a nine millimeter pistol, and was wearing earrings, a brown cap, a navy blue sweatshirt, blue jeans, and boots.
Each Defendant officer had served about one month in a plainclothes law enforcement capacity and did not have any specialized training beyond that received during the police academy basic training program. Prior to this shooting incident, some other Team members had expressed
While the two Pontiacs were traveling down Bankhead Highway, Defendants’ gray Pontiac approached Plaintiffs’ blue Pontiac from behind. Defendants do not claim that Plaintiffs were driving erratically or unlawfully. Instead, Defendants assert that they drew closer to Plaintiffs’ blue Pontiac because they thought that its occupants might be fellow Team members. Defendants based this assumption on their knowledge that the Pontiac 6000 is a popular model of car for police undercover work.
Defendants claim that as they approached Plaintiffs’ car, the driver Jackson kept looking in the rearview mirror; however, this is disputed. All agree, however, that the officers’ gray Pontiac pulled alongside Plaintiffs’ blue Pontiac. According to Defendants, this made the occupants of the blue Pontiac nervous and Defendants attributed this nervousness to their assumptions that the occupants recognized Defendants as police officers. Defendant Sauls claims that he saw one of the occupants nudge Jackson and mouth the words “Oh shit,” but Plaintiff Williams avers that there was no conversation in the blue Pontiac about the officers’ gray Pontiac. Although Defendant Pinckney claims that Plaintiff Wimbish stared at him, Wimbish testified only that he “looked back” at one of the occupants, presumably Pinckney, who had looked at him first. Defendants also claim that the occupants in the blue
As Plaintiffs’ blue Pontiac continued east on Bankhead Highway and turned south onto Marietta Street toward the Shop, Defendant Fields followed in the gray Pontiac and then drove in front of the blue Pontiac. Officer Sauls claims that it was at some point during his observation of the occupants of the blue Pontiac that he recalled that a Pontiac 6000 was an easy car to steal. Defendants did not recognize anyone in the blue Pontiac. No one in the blue Pontiac recognized Defendants or assumed that Defendants were undercover police officers. By the time the two cars approached the Shop, Defendant Fields’ gray Pontiac was in front of the blue Pontiac. According to Defendants, at some point they decided to move on because they realized that the occupants of the blue Pontiac were not fellow police officers.
B. The Parking Lot
While the officers’ car continued on, Jackson turned the blue Pontiac left into the parking lot of the Shop. The parking lot was on the south side of the Shop which faced west toward Marietta Street. Jackson parked next to a dumpster in the parking lot. The three Plaintiffs and Dean got out of their car and walked into the Shop to check on Jackson‘s motorcycle. Also present in the Shop were the owner Robert Lebus, and mechanics Tony Delly, Danny Jackson, Thomas Stearns, and Tony Thompson.4
After realizing that Jackson‘s blue Pontiac was no longer behind them, Officer Fields turned his gray Pontiac around and drove to the parking lot next to the Shop. Defendants based their decision to turn around on a suspicion that the blue Pontiac had been stolen. Defendants aver that their suspicion was based on their observation of the alleged nervousness of the occupants, their knowledge that the Pontiac 6000 is an easy car to steal, and their assertion that the blue Pontiac made such an abrupt turn into the parking lot. However, Plaintiffs’ evidence shows that their blue Pontiac turned in a regular fashion and reveals no nervousness by its occupants.
After reaching the Shop‘s parking lot, Officer Fields pulled his vehicle up on the sidewalk to the rear of Jackson‘s car partially blocking its movement from the parking lot. Officer Sauls got out of the car and inspected the empty blue Pontiac. There was no physical evidence indicating that Jackson‘s blue Pontiac had been stolen, such as a broken window or broken ignition, nor was the door ajar.4 Officer Sauls also looked in the dumpster but did not find anything suspicious. Neither Sauls, Pinckney, nor Fields called into the APD dispatcher to advise of their stop, its purpose, or its location. The officers had no outside information that Jackson or any of his friends had committed any criminal acts or were about to commit any criminal acts. At some point, Officer Pinckney called in a registration check on the blue Pontiac‘s license plate.5
Approximately one minute after Defendants arrived at the parking lot of the Shop, there was a two-car wreck at a nearby intersection. The crash was loud enough to be heard by the people inside the Shop and by other persons in the area. Plaintiffs, their friend Dean, and mechanic Delly had been looking at motorcycles, and, in response to the wreck, they walked outside onto the sidewalk in front of the Shop. They looked toward the accident scene at the intersection of Marietta and Jones Streets, which was in the opposite direction of the parking lot, the two Pontiacs, and the Defendant officers.
After hearing the wreck, Defendants observed that some of the men exiting the Shop appeared to be the men who had been in the blue Pontiac. According to Plaintiffs, the blue-jean-clad Defendants had their police badges concealed so that nothing visually identified them as police officers. With guns drawn, the three Defendants then approached the men outside and did not verbally identify themselves as police officers. Defendants yelled and cursed at everyone to get back into the Shop and lie down. Officer Sauls stood in the doorway facing the inside of the Shop. Officers Fields and Pinckney were behind Sauls with Fields on the right and Pinckney on the left.6 While in the doorway, Defendants swept the Shop‘s interior with their guns.
There is considerable testimony that at this point everybody in the Shop thought that Defendants were armed robbers about to harm them because the Defendants yelled obscenities at them, screamed at them to get on the floor, and never identified themselves as police officers. Jackson, Wimbish, Williams, and mechanic Delly went to the floor as ordered. Plaintiffs’ friend Dean ran to the rear of the Shop. Mechanic Stearns ducked behind some motorcycles in the Shop. There was substantial confusion within the Shop.
D. The Shooting
Believing Defendants were armed robbers about to harm the Shop‘s occupants, mechanic Stearns, a Caucasian male, drew his nine millimeter handgun and fired a three-round burst at Officer Sauls. It is undisputed that Stearns shot first and was licensed to carry a concealed weapon. Stearns then retreated behind a row of motorcycles inside the Shop where he could not be seen from Marietta Street. Two of Stearns‘s bullets hit Officer Sauls in the abdomen. Sauls began to retreat across Marietta Street and initially fired two or three shots toward the doorway of the Shop. According to Plaintiffs, Sauls fired his shots despite the fact that Stearns, the man with the gun, was no longer in view and only Jackson, Wimbish, Williams, and Delly lying on the floor could be seen from the street. Indeed, Stearns was never shot. Instead, one of Sauls‘s shots hit Plaintiff Wimbish in the leg as he lay on the ground unarmed. Officer Sauls fired his remaining rounds toward the doorway while he was running north on Marietta. Sauls eventually collapsed up the street in a store front.
After the shooting erupted, Officers Pinckney and Fields moved to the south of the doorway closer to the parking lot and the two Pontiacs. Plaintiffs contend that Officer Pinckney initially was not aware that Sauls had been hit.7 Pinckney stood
Officer Fields then approached Jackson, as Jackson attempted to crawl back into the Shop. Officer Fields pointed a gun at Jackson as though he was going to shoot him again, but he did not. It is undisputed that Officer Fields never fired his weapon, that only Pinckney‘s bullets hit Jackson, and that Jackson died at the scene as a result of injuries from Pinckney‘s bullets. According to Plaintiffs, Defendants never verbally or otherwise identified themselves as police officers during any of this gunfire. Other witnesses testified that Sauls and Fields pulled their police badges from underneath their shirts only after the shooting.
E. Post-Shooting Activity
Following the shooting, Officer Pinckney radioed to report the incident. He did not request back-up and did not report specifically that Officer Sauls had been hit. Instead, Pinckney reported that “I got one down,” which could have meant Jackson or Sauls. In this summary-judgment posture, we must infer it meant Jackson. Also, immediately after the shooting, Lebus, the owner of the Shop, called 911 and stated: “Some [expletive deleted] guys came in here and just started popping rounds in.” Because Lebus did not identify the shooters as police officers, this circumstantially supports Plaintiffs’ testimony that Defendants never identified themselves as police officers.
Plaintiff Wimbish, shot in the leg and unarmed, was placed under arrest for aggravated assault and was transferred to the hospital. Plaintiffs’ friend Dean, also unarmed, was arrested for aggravated assault. Although arriving at the scene after the shooting was over and the scene was taped off, George Jackson, an African-American male, was taken into custody and questioned. Stearns, a Caucasian male, fired the first shots but was not arrested. No weapons were found on Plaintiffs or anyone in the Shop except Stearns.
Subsequently, APD‘s Office of Professional Standards (“OPS“) investigated the shooting incident and initially recommended charging Officers Sauls and Pinckney with multiple work rule violations, including violations based on the fact that “there was not at this time period reasonable suspicion to make a [T]erry stop and frisk.” The initial findings also reported that Officers Sauls and Pinckney had not been truthful in their statements to OPS and the Homicide Division. However, OPS‘s final recommendation was that only Officer Pinckney be charged and only with work rule violation 6.09, Use of Firearms.9 This recommendation was accepted and Officer Pinckney was suspended for five days. The Fulton County District Attorney‘s Office, the Federal Bureau of Inves-
II. PROCEDURAL HISTORY
In these
After extensive discovery, all parties moved for summary judgment on Defendants’ qualified immunity defenses. The district court‘s order denied Defendants’ summary judgment motions based on qualified immunity to Plaintiffs’ illegal stop and excessive force claims and granted Plaintiffs’ similar summary judgment motion.10 Defendants timely appealed.
III. STANDARD OF REVIEW
The district court‘s order addressing Defendants’ qualified immunity defenses to these
IV. QUALIFIED IMMUNITY PRINCIPLES
Qualified immunity shields a
Additionally, the standard for determining if an officer violated clearly established law is an objective one and does not include inquiry into the officer‘s subjective intent or beliefs. See Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). Thus, a police officer is entitled to qualified immunity if a reasonable police officer could have believed his or her actions were lawful in light of clearly established law and the information possessed by the officer at the time the conduct occurred. See Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir. 1990).
Against this background, we outline why the district court correctly denied Defendants’ qualified immunity motions regarding Plaintiffs’ illegal stop claims but incorrectly denied those motions regarding Plaintiffs’ excessive force claims.
V. INVESTIGATORY STOP
“[A]n officer may, consistent with the
A. Timing of the Stop
We first examine at what point during the encounter Plaintiffs were actually detained. As the Terry Court observed, “[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 16, 88 S. Ct. 1868. It is only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. at 19 n. 16, 88 S. Ct. 1868; see also Courson v. McMillian, 939 F.2d 1479, 1488 (11th Cir. 1991). Plaintiffs and Dean freely exited their blue Pontiac and walked into the Shop. Officer Fields‘s positioning the gray Pontiac to impede the movement of the unoccupied blue Pontiac did not “seize” the Plaintiffs. Instead, the stop here did not take place until the three police officers, with guns pointed, ordered with profanity that Plaintiffs lie on the floor. Therefore, we focus on the constitutionality of that action by the officers.
We recognize Defendants’ contention that Officer Sauls alone approached the Shop‘s doorway and ordered Plaintiffs to lie on the ground, while Officer Fields chased Corey Dean and Officer Pinckney radioed in the license plate check. However, viewed in a light most favorable to Plaintiffs, the evidence shows that Officers Pinckney and Fields, with guns drawn, were immediately behind and to the left and right, respectively, of Officer Sauls when Sauls, with a gun drawn, approached Plaintiffs. Thus, we must view the evidence as showing that all three officers acted in concert in brandishing their weapons, ordering Plaintiffs to the ground, and conducting this investigatory stop. The next question is whether they possessed arguable reasonable suspicion for their stop.
B. Arguable Reasonable Suspicion
Whether arguable reasonable suspicion existed for Defendants’ investigatory stop depends on whose version of events a jury believes. Plaintiffs’ version, if credited, shows no arguable reasonable suspicion. According to their evidence, Plaintiffs traveled from Jackson‘s home to the Moto Cycle Shop, obeyed all traffic laws, acted normally without any nervousness, turned into the parking lot because they reached their destination, parked their car in a normal manner with all doors completely shut, entered a business expecting them, heard a loud crash, came out to look at the accident, were approached by three unidentified, gun-toting, blue-jean-clad strangers yelling obscenities and ordering them to get on the ground. Under Plaintiffs’ version, Dean ran only after the three strangers drew their weapons and ordered, with profanity, that everyone lie down. Indeed, the Shop‘s occupants believed that the strangers were armed robbers about to harm them. If a jury were to credit Plaintiffs’ evidence, then Defendants had no basis for their actions. Thus, a reasonable police officer would have known that he lacked reasonable suspicion for stopping Plaintiffs and that he was violating clearly established law in doing so. See Reid v. Georgia, 448 U.S. 438, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Smith, 799 F.2d 704, 707 (11th Cir. 1986). Therefore, the district court correctly denied Defendants’ motions for summary judgment on their qualified immunity defenses to Plaintiffs’ illegal stop claims.13
This case is unusual in that Plaintiffs filed their own joint motion for summary judgment addressing qualified immunity. In addition to denying Defendants’ motions, the district court granted Plaintiffs’ motion, in effect striking Defendants’ qualified immunity defenses as a matter of law. The district court, however, erred in doing so because Defendants’ different sequence of events, if credited by a jury, clearly establishes arguable reasonable suspicion for the stop here and would entitle Defendants to qualified immunity on Plaintiffs’ illegal stop claims. See Wardlow, 120 S. Ct. at 675-76.14
In their testimony, Defendants explain why they followed and drew close to Plaintiffs’ blue Pontiac, and how Defendants thought certain occupants recognized them as being police officers, looked nervous, and refused to make eye contact with the officers. After pulling ahead in traffic, Defendants were watching through the rearview mirror and saw Plaintiffs’ blue Pontiac appear to take evasive action by turning abruptly into a side street. Defendants doubled back and found the blue Pontiac in a parking lot. To them the blue Pontiac had the look of a stolen car rapidly abandoned because a door was ajar with an item of clothing hanging outside.
Defendants further aver that their police badges were visible on the outside of their clothing, that only Sauls approached the Plaintiffs, that Fields and Pinckney remained in the parking lot, that Sauls identified himself as a police officer, that Dean then fled, and that only then did Sauls, fearing for his safety, unholster his weapon and order Plaintiffs to the ground. Sauls also testified that he never pointed his gun at the men, but kept it at a 45-degree angle. According to Defendants, Sauls had re-holstered his weapon and was reaching down to pat down the men when Stearns shot. Only after being shot did Sauls unholster his weapon and return fire. Furthermore, when Stearns shot, Fields was chasing Dean, and Pinckney was radioing in the license plate of Plaintiffs’ car. Officers Fields and Pinckney did not approach the Shop and unholster their weapons until after Stearns shot.
Plaintiffs’ evidence contradicts this account of the shooting incident. Nonetheless, Defendants’ version of events, if credited by a jury, establishes arguable reasonable suspicion for the stop. Therefore, we find that the district court erred in granting summary judgment for Plaintiffs on Defendants’ qualified immunity defenses to Plaintiffs’ illegal stop claims.
VI. DAMAGES AND CAUSATION
Before leaving Plaintiffs’ illegal stop claims, we address a causation issue. Even if under Plaintiffs’ evidence a
Plaintiffs contend that Defendants’ illegal stop set off and caused the chain reaction of Stearns‘s shooting and hitting Sauls, Sauls‘s shooting and hitting Wimbish, and Pinckney‘s shooting and killing Jackson. According to the Plaintiffs and other witnesses, Defendants in plain clothes never identified themselves as police officers, drew their guns, yelled obscenities, and ordered the Shop‘s occupants to lie down on the floor. Only then did Stearns shoot, fearing for his safety and believing that the blue-jean-clad Defendants were armed robbers about to harm them. Plaintiffs assert that
Plaintiffs further argue that their evidence also raises jury issues regarding foreseeability and whether Stearns‘s shooting, the officers’ shooting back, and Jackson‘s death and Wimbish‘s injuries were natural and foreseeable consequences of the officers’ illegal stop. We first caution that a police officer cannot foresee all conduct occurring after a stop or arrest, even if illegal. For example, when a uniformed officer, or an undercover officer identifying himself as a policeman, draws his gun during an illegal stop or arrest, third party civilians and detained persons do not normally begin shooting. Thus, in those situations, an officer would not reasonably foresee a shooting in response to a stop or arrest, even if illegal. However, under Plaintiffs’ evidence in this case, a jury could find that it was reasonably foreseeable that Defendants’ dress and illegal stop of persons at this business would make Defendants appear to the Shop‘s occupants as armed robbers about to harm them. Under Plaintiffs’ version of the events, a jury could further find that it was reasonably foreseeable that an illegal stop in this manner at a business might result in the discharge of firearms by the Shop‘s occupants, the officers’ firing back, and injuries to the Shop‘s occupants being illegally stopped. Thus, we find that Plaintiffs’ evidence is sufficient to create jury issues regarding whether, except for Defendants’ illegal stop, the damages from Jackson‘s death and Wimbish‘s injuries would not have occurred and regarding whether Jackson‘s death and Wimbish‘s injuries were reasonably foreseeable consequences of Defendants’ illegal stop.17 Therefore, the district court properly denied Defendants summary judgment on their qualified immunity defenses to Plaintiffs’ illegal stop claims for these damages.
VII. EXCESSIVE FORCE PRINCIPLES
We next examine Plaintiffs’ claims based on excessive force. The Supreme Court has instructed that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the
Therefore, “[u]se of force must be judged on a case-by-case basis ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.‘” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (quoting Graham, 490 U.S. at 396, 109 S. Ct. 1865). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S. Ct. 1865. The reasonableness inquiry is also an objective one. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
Utilizing these principles, we now examine Plaintiffs’ two separate legal theories for their excessive force claims. Plaintiffs first contend that any force was excessive because the stop was illegal. Alternatively, Plaintiffs assert that even if the stop was legal, Defendants still used excessive force during that stop. We discuss each theory in turn.
VIII. EXCESSIVE FORCE DURING AN ILLEGAL STOP
As their first theory, Plaintiffs assert that because there was no basis for the stop and no governmental interest at stake, any use of force, however minimal,
Williamson‘s rule makes sense because if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim. The correct analysis is that the excessive force claim is subsumed in the illegal stop or arrest claim, as recognized in Williamson, where a plaintiff contends the force was excessive because there was no basis for any force.20
IX. EXCESSIVE FORCE DURING A LEGAL STOP
As their second theory, Plaintiffs assert that even if the investigatory stop was legal, Defendants used more force than reasonably necessary to effect that stop. We examine first Defendants’ threat of force in drawing weapons and ordering Plaintiffs to lie on the ground and then Defendants’ deadly force.
A. Threat of Force
The right to make an investigatory stop carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Graham, 490 U.S. at 396, 109 S. Ct. 1865. Determining whether the degree of force used was reasonable requires consideration of the exigencies of the immediate situation and the officers’ being forced to make split-second decisions. Additionally, this Court has held that an officer‘s drawing a weapon and ordering a person stopped to lie on the
Additionally, the facts the jury would have to find to support arguable reasonable suspicion and to make the stop legal likewise support the threat of force initially used by Defendants during that stop. For example, Defendants base their reasonable suspicion on their contention that Plaintiffs took evasive action in abruptly turning into a parking lot and abandoning their car and that Corey Dean ran when Sauls identified himself as a police officer. If this occurred before Sauls drew his weapon and ordered Plaintiffs to lie on the ground, then the officers’ threat of force was not excessive.
At a minimum, we find that Plaintiffs have not shown that a reasonable police officer, making this legal stop, would have
B. Deadly Force
Plaintiffs further claim that Defendants’ use of deadly force during this stop, even if legal, was excessive. It is undisputed that Officers Sauls and Pinckney did not shoot until after citizen Stearns shot. Thus, the issue becomes whether Defendants’ shooting in response to Stearns‘s shots was reasonable under the circumstances.
We begin with Officer Sauls‘s use of deadly force. Under Plaintiffs’ version of the events, Officer Sauls was standing in the doorway of the Shop and was struck in the abdomen by Stearns‘s two bullets. Stearns then crouched down inside the Shop, but Sauls fired back in an effort to save his own life. The fact that Sauls hit Plaintiff Wimbish, lying on the floor in the Shop, and not Stearns, the man with the gun firing at Officer Sauls, does not negate the reasonableness of Officer Sauls‘s re-
Officer Pinckney is also entitled to qualified immunity on Wimbish and Williams‘s claims of excessive deadly force because it is undisputed that he did not fire at or shoot them. However, under Plaintiffs’ version of Pinckney‘s actions, a closer issue is presented regarding whether Pinckney is entitled to qualified immunity on Jackson‘s claim of excessive deadly force. According to Plaintiffs’ evidence, Officer Sauls began his retreat up Marietta Street and Officer Pinckney took a position on the south side of the doorway where he could not see Stearns inside of the Shop. In an attempt to escape the gunfire between Stearns and Sauls, Plaintiff Jackson crawled out of the Shop. When Jackson saw Officer Pinckney with a gun drawn, he fell to the ground with his face down on the sidewalk. From his position by the lightpole, Officer Pinckney fired two shots toward the unarmed Jackson who was lying prostrate only thirteen feet away from Officer Pinckney. These two shots did not directly hit Jackson but hit the ground inches in front of Jackson‘s head and ricocheted up piercing Jackson in the arm and neck. It is undisputed that Pinckney‘s two bullets fatally wounded Jackson.
Officer Pinckney explains his shots toward Jackson by claiming that he saw the “muzzle of a gun” in the doorway and that he was laying cover fire for his wounded partner Sauls. However, Plaintiffs’ evidence contradicts Pinckney‘s contention about this gun. Plaintiffs offer evidence not only that Jackson never had a gun, but also that no gun, except for Stearns‘s gun, was located at the scene anywhere. There is also no evidence that Jackson had any other object that could have looked like a gun to Pinckney or that there was any other object in the doorway. Plaintiffs’ evidence further shows that Stearns, the only civilian with a gun, was never closer than three feet from the door, making it impossible for the muzzle of his gun to have been in the doorway. Because we must view the evidence in the light most favorable to the Plaintiffs, the “muzzle of a gun” theory does not aid Pinckney in this summary-judgment posture.
However, Pinckney‘s use of deadly force as cover fire does help him. It is undisputed that Pinckney knew that someone at the Shop had fired three shots at Sauls and that Sauls was retreating and firing back. The record also shows that Pinckney undisputedly had to make split-second decisions in a tense, uncertain, and rapidly evolving situation. Thus, we find that Pinckney‘s actions in shooting back were reasonable given Stearns‘s having shot first, the deadly force thus threatening Sauls and Pinckney at this scene, and Sauls‘s retreating while firing back. At a minimum, we cannot find that under the unusual circumstances of this case, a reasonable police officer would have known that he was violating clearly established law by his use of deadly force after Stearns fired three shots at that police officer‘s partner. Therefore, Officer Pinckney is also entitled to qualified immu-
Unlike Officers Sauls and Pinckney, Officer Fields never fired his weapon or employed deadly force. Plaintiffs claim, however, that Officer Fields should have prevented Pinckney‘s use of deadly force. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). Since Pinckney is entitled to qualified immunity on his use of deadly force, there is no derivative claim against Fields. Moreover, in order for an officer to be liable for failing to stop another officer‘s unconstitutional use of deadly force, the officer must be in a position to intervene. See Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998) (addressing officer‘s liability in the context of failing to stop police brutality). We find that there is no evidence that Fields had time to prevent Pinckney‘s response. Even in the light most favorable to Plaintiffs, this was a rapidly developing situation in which shots were fired and an officer was retreating while firing his weapon. Therefore, we find that Fields‘s conduct was objectively reasonable and that he is entitled to qualified immunity on Plaintiffs’ claims of excessive deadly force.
Finally, since Defendants are entitled to summary judgment on Plaintiffs’ excessive force claims, the district court also erred in granting Plaintiffs’ motion for summary judgment on Defendants’ qualified immunity defenses to Plaintiffs’ excessive force claims.
X. CONCLUSION
In summary, we find (a) that the district court properly denied Defendants’ motions for summary judgment on their qualified immunity defenses to the Plaintiffs’ illegal stop claims, (b) that the district court erred in denying Defendants’ motions for summary judgment on their qualified immunity defenses to Plaintiffs’ excessive force claims, (c) that the district court erred in granting Plaintiffs’ motion for summary judgment on Defendants’ qualified immunity defenses to Plaintiffs’ illegal stop and excessive force claims, and (d) that the district court erred in failing to rule on Defendants’ motion for summary judgment on their qualified immunity defenses to Plaintiffs’ equal protection claims.
We remand these cases to the district court with instructions that prior to trial or further discovery, the district court shall rule on Defendants’ motion for summary judgment based on their qualified immunity defenses to Plaintiffs’ equal protection claims. Additionally, when the facts are determined from the conflicting evidence at trial, the district court may also be required to revisit whether Defendants are entitled to qualified immunity on Plaintiffs’ illegal stop claims.23
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
The mission is to be proactive and prevent crime from occurring by increased visibility of police, surveillance of areas where data suggests crimes may occur, and identifying persons likely involved in the commission of crimes.
At approximately 11:00 am on December 7, 1995, even though you were acting in the defense of a fellow officer, you still endangered the lives of innocent persons when you discharged your 9mm toward the front entrance of 441 Marietta Street.
The threat of force used here and in Courson stands in contrast to the actual force with physical contact in other cases. See Sheth v. Webster, 145 F.3d 1231 (11th Cir. 1998) (holding that defendant officer was not entitled to qualified immunity where officer arrested plaintiff without any arguable probable cause and used excessive force in pushing her against a soda machine, handcuffing her, and dragging her to a police car); Smith v. Mattox, 127 F.3d 1416, 1418-19 (11th Cir. 1997) (holding that if jury found that detainee had initially resisted arrest but then “docilely submitted to arrest” and laid down, the defendant officer‘s then breaking his arm after he lay on the ground fell “within the slender category of cases in which the unlawfulness of the conduct is readily apparent even without clarifying caselaw“); Ortega v. Schramm, 922 F.2d 684 (11th Cir. 1991) (holding jury issue existed regarding excessive force where defendant officer shot the padlock off a door without identifying himself as a police officer and then searched the premises, while another officer guarded plaintiff at gun point and then pushed down or kicked plaintiff in the back, and where after the search turned up no evidence, plaintiff was dragged out of the premises and put on the ground).