JAYNE SWINFORD v. OFFICER JOSHUA SANTOS, et al.
No. 22-13675
United States Court of Appeals For the Eleventh Circuit
November 4, 2024
[PUBLISH]
Plaintiff-Appellant,
versus
OFFICER JOSHUA SANTOS, In his individual capacity, OFFICER CHARLES BIDINGER, In his individual capacity, OFFICER ROGER OLIVER WILLIAMS, JR., In his individual capacity, SERGEANT JONATHAN MCILVAN, In his individual capacity, CORPORAL RICHARD ALEXANDER LEDER, In his individual capacity, et al.,
Appeal from the United States District Court for the Middle District of Georgia
D.C. Docket No. 3:21-cv-00090-CAR
Before BRANCH, GRANT, Circuit Judges, and CALVERT,* District Judge.
BRANCH, Circuit Judge:
This appeal arises out of the death of Thomas Swinford. Thomas was shot and killed by Athens-Clarke County (“ACC“) police officers after he refused officers’ commands to drop a gun1 and instead raised and pointed it at police officers. Thomas‘s widow, Jayne Swinford, filed a lawsuit in Georgia state court alleging claims under
* The Honorable Victoria Calvert, United States District Judge for the Northern District of Georgiа, sitting by designation.
Mrs. Swinford‘s complaint referenced, but did not attach, body camera footage, which she asserted supported her claims. The case
Defendants moved to dismiss the complaint on qualified and official immunity grounds, relying primarily on body camera footage from two officers that showed the sequence of events leading up to the shooting. The district court considered the body camera footage over Mrs. Swinford‘s objections and granted defendants’ motion to dismiss, finding that the footage established that the officers acted reasonably in light of the circumstances they faced and thus they did not violate Thomas‘s constitutional rights. Accordingly, the district court also denied Mrs. Swinford‘s motion to amend her complaint on futility grounds. The district court subsequently denied her motion to reconsider, and she timely appealed.
On appeal, she again argues that the district court improperly considered the contents of the body camera footage as well as that the district court erred in denying her motion to amend and motion for reconsideration. We disagree. For the following reasons, we determine that the district court properly considered the body camera footage under our incorporation-by-reference doctrine and properly granted defendants’ motion to dismiss. Accordingly, after careful review and with the benefit of oral argument, we affirm the district court‘s orders.
Mrs. Swinford‘s initial complaint alleged the following facts, which she based in part off of body camera footage.2
Around 4:15 p.m., on March 8, 2019, the ACC police department received reports from Thomas‘s father and Mrs. Swinford that Thomas was threatening to commit suicide by police and was under the influence of drugs. The ACC police department had responded to three prior suicide threats involving Thomas. In response to the threat on March 8, 2019, the ACC police department dispatched units to Thomas‘s home in Athens, Georgia. One of the officers who responded communicated to dispatch that Thomas had a handgun. Accordingly, the police department established a perimeter for a “barricaded gunman” situation.
Mrs. Swinford alleged that once the officers were dealing with a barricaded gunman situation, the police department was required, per its own policy, to dispatch a Strategic Response Team (“SRT“), whose members have advanced training and special equipment to respond to situations involving mental health crises. Nevertheless, the police department did not deploy an SRT, instead it deployed regular units who created a perimeter around the residence. At 5:55 p.m., the police department received a report that Thomas had fled in his mother‘s car and was outside
Mrs. Swinford‘s initial complaint described the following events immediately preceding Thomas‘s death:
- Police units established a perimeter around the church parking lot and took cover as they aimed firearms at Thomas.
- Police spent the next twenty minutes ordering Thomas to put down his gun as he paced near his mother‘s vehicle.
- Thomas informed the police he would come out if he were permitted to speak to his wife, but the police directed Mrs. Swinford not to speak to him.
- None of the police units on scene were equipped with “less lethal” weapons, such as beanbag or sponge rounds, although officers repeatedly mentioned that they needed these rounds while on scene.
At 6:13 p.m., dispatch advised the units on scene that they may need an SRT commander, but an SRT commander was never deployed to the scene. - At 6:25 p.m., Thomas kissed a photo of his family.
- At 6:28 p.m., Thomas walked in the direction of two police officers who had taken cover behind their patrol vehicle and raised his gun toward them.
- At the time Thomas raised his gun, the SRT was not on the scene.
- The seven officer defendants opened fire on Thomas after he raised his gun, firing a total of twenty-one shots.
- Ultimately, six shots struck Thomas—including two in the back—and Thomas died of his injuries.
- Mrs. Swinford alleged that “[a]ccording to bodycam footage” Thomas fell face down immediately after the first shots were fired, but that the officers continued to fire on Thomas after he was already on the ground with his gun out of reach.
- Mrs. Swinford alleged that all officers who fired on Thomas knew that he “had expressed the intention to commit suicide by enticing [the police] to kill him by employing lethal force.”
Based on the above allegations Mrs. Swinford filed the instant lawsuit in July 2021, bringing the following three claims:
In opposition to the motion, Mrs. Swinford argued that the district court could not consider the bodycam videos because: (1) they were not written instruments; (2) they showed only approximately three minutes of Thomas‘s interaction with the police whereas her complaint relied on facts gleaned from hours of video across fifteen different body cameras and thus the videos were not central to Mrs. Swinford‘s claims; and (3) she did not “stipulate” to the videos’ authenticity. Notably, however, she did not argue that the defendants’ bodycam videos were inauthentic or had been doctored in some manner, only that they were not “comprehensive” or “complete” because they showed only approximately three minutes of the interaction. She also argued that the individual officers were not entitled to qualified immunity.6 She also did not respond to the defendants’ arguments regarding the Monell claims against the county and the chief of police.
In a comprehensive order, the district court granted defendants’ motion to dismiss and denied Mrs. Swinford‘s request to amend her complaint. The district court relied on the incorporation-by-reference doctrine to consider the body camera footage in reaching its decision. In relying on this doctrine, the district court determined that the initial—and operative—complaint direсtly referenced the bodycam footage at issue, including by having an entire section titled “Comprehensive Facts from Bodycam Videos and Reports.” Next, it determined that the videos were authentic because Mrs. Swinford had disputed their completeness, not their authenticity. As to that dispute, the district
After determining it could consider the defendants’ body camera footage, the district court summarized the contents. As the district court emphasized, the defendants’ body camera footage tells a different story than the complaint regarding the moment that officers started shooting at Thomas. Here is what the footage shows.
For nearly three minutes prior to the shooting, Thomas can be seen pacing around his vehicle. An officer utilizing a speaker repeatedly told Thomas to put his gun down while also expressing concern for his well-being. For example, the officer told Thomas that they could get him help and that his family was concerned about him and wanted to know he was “alright.” The officer instructed Thomas to “set the gun down on the hood” and to talk with him. He told Thomas to put down the gun and come to the front of his vehicle. He told Thomas that he knew there was a lot going on, but that they could work through it. He implored Thomas to “give [the police] a chance.” He told Thomas that he knew that Thomas was feeling alone but that he was not alone.
Immediately after the officer told Thomas that he was not alone, Thomas started walking toward officers with his gun in hand and the officer on the loudspeaker stated, “Don‘t do that Thomas. Thomas do not do that. Drop the gun.” Thomas lifted the gun and aimed it at some of the officers and, as a result, the officers
After considering the video evidence, the district court determined that the individual officers were entitled to qualified immunity because their use of force was rеasonable in light of the circumstances, namely Thomas‘s raising of the gun and pointing it at some of the officers, and thus they had not committed a constitutional violation. And because the defendants’ bodycam footage established that no constitutional violation occurred, the district court determined that any amendment would be futile. The district court also concluded that Mrs. Swinford had failed to state a failure-to-supervise claim against the police chief because she did not allege any facts that showed either that the chief directly participated in the alleged unconstitutional conduct or that a causal connection existed between the chief‘s actions and the alleged violation. Similarly, the district court found that the complaint failed to plead facts to plausibly establish any causal connеction between the county‘s policies or customs and the alleged constitutional violation. As to Mrs. Swinford‘s proposed ADA claim in the proposed amended complaint, the district court
After the district court issued its dismissal order and entered judgment against Mrs. Swinford, she moved the district court to reconsider under
The district court denied Mrs. Swinford‘s motion to reconsider, determining that (1) she was largely attempting to relitigate matters already decided by presenting new arguments and new evidence (including body camera footage from other officers); (2) it would not consider her new arguments; (3) it would not consider the new evidence she submitted because she did not allege that this evidence was unavailable to her when the district court was considering the motion to dismiss; and (4) the situation in Hunter was factually distinct from the instant one. Mrs. Swinford timely appealed the district court‘s orders.8
II. Standard of Review
We review the district court‘s grant of a motion to dismiss under
III. Discussion
Mrs. Swinford raises three primary arguments on appeal. First, she argues that the district court improperly considered the defendants’ body camеra footage when ruling on defendants’ motion to dismiss and thus erred in finding that the individual officers had not committed a constitutional violation and were entitled to qualified immunity. Second, she argues that the district court erred in denying her motion to amend. Finally, she argues that the district court erred in denying her motion to reconsider. We address and reject each argument in turn.
A. Motion to Dismiss
1. The district court properly considered the defendants’ body camera footage.
In general, district courts must limit their consideration to the pleadings and any exhibits attached to the pleadings when ruling on a motion to dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). If a party presents, and the court considers, evidence outside of the pleadings, the general rule requires the district court to convert the motion to dismiss into a motion for summary judgment. See
Under the incorporation-by-reference doctrine, a district court may consider evidence attached to a motion to dismiss without converting the motion into a motion for summary judgment “if the document is (1) central to the plaintiff‘s claim; and (2) undisputed, meaning that its authenticity is not challenged.” Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024).
As to the first requirement—the centrality of the bodycam footage to Mrs. Swinford‘s claims—the defendants’ bodycam videos clearly depict the events central to her excessive force claim—the events surrounding the individual officers shooting her husband. The footage shows all the relevant conduct, namely officers’ attempts to de-escalate the situation, Thomas ignoring the officers’ instructions to put down his gun, Thomas walking toward officers while raising the gun, and the officers firing upon Thomаs. This sequence of events is what forms the basis of Mrs. Swinford‘s claims against the defendants.
Mrs. Swinford appears to argue that the centrality requirement is not satisfied in this case because, according to her, the incorporation-by-reference doctrine applies only to written instruments, and the defendants’ bodycam videos are not written instruments. This argument is foreclosed by our decision in Baker v. City Madison, where we applied the incorporation-by-reference doctrine to police bodycam footage like the footage at issue in this
Turning now to the second requirement of the incorporation-by-reference doctrine—that the bodycam footage be undisputed—Mrs. Swinford argues that (1) she did not stipulate that the footage was authentic; and (2) the footage was incomplete because it showed only excerpts of the officers’ body camera footage and did not include footage from every officer on the scene that day. Both of her arguments fail.
As to her first contention, nothing in our precedent mandates that a plaintiff stipulate that a video is authentic for the district court to properly cоnsider it. All that is required is that its authenticity is not challenged. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). She has not done so. She did not argue below and
As to her second contention regarding the video footage being incomplete, Mrs. Swinford relies on our decision in Horsley, wherein we determined that the district court could not consider transcript excerpts from a CNN broadcast attached to the defendant‘s motion to dismiss in a defamation case because the excerpts “did not contain the statements the complaint insist[ed] that [the defendant] made” and that “for all we kn[e]w” those statements were intentionally left out of the excerpts that the defendant selected. Horsley, 304 F.3d at 1135. We face a very different situation here. While the defendants’ bodycam videos may be “incomplete” in the sense that they do not show every angle of Thomas‘s death or the hours of footage leading up to his death, they clearly show unedited footage of the event underlying Mrs. Swinford‘s excessive force claim. Accordingly, the district court did not err in concluding that the video footage was authentic.
Because the requirements of the incorporation-by-reference doctrine were met, the district court properly considered the defendants’ body camera footage when ruling on the motion to dismiss. We now assess whether this video footage established that the officers were entitled to qualified immunity.10
Qualified immunity shields government employees from suit against them in their individual capacities for discretionary actions they perform in carrying out thеir duties. Brooks v. Miller, 78 F.4th 1267, 1279 (11th Cir. 2023). To determine whether qualified immunity applies, we engage in a burden-shifting analysis. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). The first step requires a defendant to show that he was acting within the scope of his discretionary authority when committing the challenged act. Id. “Once the defendant does that, the burden shifts to the plaintiff, who must show that qualified immunity is not appropriate” by establishing: “(1) the defendant violated a constitutional right, and (2) that constitutional right was ‘clearly
Mrs. Swinford concedes on appeal that the individual officers were acting within their respective discretionary authority when they shot Thomas. Accordingly, she must establish both that the individual officers violated Thomas‘s constitutional rights and that the right was clearly established at the time of the officers’ actions. We begin and end our qualified immunity anаlysis by addressing the first requirement.
The Fourth Amendment provides a “right of the people to be secure in their persons . . . against unreasonable . . . seizures.”
(1) has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others or that he has committed a crime involving the infliction or threatened infliction of serious physical harm; (2) reasonably believes that the use of deadly force was necessary to prevent escape; and (3) has given some warning about the possible use of deadly force, if feasible.
Hunter v. Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (emphasis added) (quoting Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005)).
Based on our precedent and the contents of the defendants’ body camera footage, we conclude that the individual officers’ use of deadly force was reasonable in light of the cirсumstances they faced. Once Thomas approached some of the officers and pointed his gun at them, the individual officers clearly had probable cause to believe that he posed a serious threat to the officers on scene. Accordingly, they did not use excessive force in shooting Thomas.
Mrs. Swinford makes four arguments as to why we should reach a different conclusion, none of which are convincing. First,
Second, Mrs. Swinford argues that even assuming the officers had probable cause to believe Thomas posed a threat when he raised his gun, this probable cause dissipated once the first shot was fired because Thomas immediately began to fall. According to her version of events, the initial shot was a separate and distinct event followed by other officers firing additional shots after Thomas was already on the ground with his gun out of reach. In making this argument she relies on our decision in Hunter, where we determined that an officer was not entitled to qualified immunity at summary judgment for firing a second round of seven shots after his initial round of three shots caused the suspect to drop his firearm and obey the officers’ commands. 941 F.3d at 1279-80.
The problem for Mrs. Swinford is the body camera footage shows an entirely different series of events than what she describes. Although Mrs. Swinford describes a separate round of fire after Thomas is already incapacitated on the ground, the footage clearly
We now turn to Mrs. Swinford‘s third argument. She argues that Thomas was not “warned of [the officers‘] intention to use deadly force . . . as he paced outside his vehicle.” But we have never held that an officer must always warn someone of his intent to use deadly force. Davis v. Waller, 44 F.4th 1305, 1315 (11th Cir. 2022) (“[W]e have declined to fashion an inflexible rule that, in order to avoid civil liability, an officer must always warn his suspect before firing—particularly where, as here, such warning might easily have cost the officer his life.” (quotations omitted)), cert. denied, 143 S. Ct. 2434 (2023). And there is no indication that the officers intended to use deadly force as their interaction began with Thomas pacing outside his vehicle. Indeed, the officers continued to instruct him to put down his firearm and told him they were
Mrs. Swinford‘s final argument is that the district court erred in conducting the qualified immunity analysis in a collective manner rather than looking at each of the officers’ individual actions as viewed from their respective vantage points. It is true that “each defendant is entitled to an independent qualified-immunity analysis as it relates to his or her actions and omissions” and thus courts “must be careful to evaluate a given defеndant‘s qualified-immunity claim, considering only the actions and omissions in which that particular defendant engaged.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). Unfortunately for Mrs. Swinford, however, she invited this error by continually referring to the officers’ actions collectively, rather than individually, and she failed to preserve such an argument for appeal because she did not raise it in opposing the motion to dismiss. F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 65 (11th Cir. 2013) (“It is a cardinal rule of
When Mrs. Swinford filed her complaint, she brought her excessive force claim against the officers based on their collective actions, rather than individually. Accordingly, the individual officers argued in their motion to dismiss that all of them were entitled to qualified immunity based on the contents of the body camera footage. In opposing the motion to dismiss, Mrs. Swinford nevеr argued that the officers’ actions had to be assessed on an individualized basis and instead continued to refer to the officers as a group arguing that their collective actions did not entitle them to qualified immunity.12 The first time that she argued to the district court that the officers’ actions had to be assessed individually was when she filed her motion to reconsider. The district court declined to consider this argument, and the late raising of the issue did not preserve the argument for appeal. Accordingly, we will not consider it.13 See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957-58 (11th Cir. 2009) (refusing to consider an argument raised for the first time to the district court in a motion to reconsider).
B. Motion to Amend
We now turn to Mrs. Swinford‘s argument that the district court erred in denying her motion to amend the complaint, which would have dropped her references to the body camera footage and added a claim alleging a violation of the ADA,
Mrs. Swinford argues in a conclusory manner on appeal that the district court erred in denying her leave to amend because (1) she filed a motion to amend her complaint before the trial court issued an order on the motion to dismiss; (2) the district court cited to the original complaint in deeming that her proposed amended complaint was futile; and (3) the district based its finding of futility on the body camera footage that defendants attached to their motion to dismiss. Her arguments fail. To start, as discussed in footnote 10, the district court cited to the original complaint because it was ruling on defendants’ motion to dismiss and the original complaint was the operative complaint. And in ruling on the motion to dismiss, the district court properly considered the defendants’ body camera footage which established that the officers had not violated Thomas‘s constitutional rights. Accordingly, the district court properly concluded that any amendment to Mrs. Swinford‘s claims of excessive force would be futile because the video evidence established no constitutional violation had occurred. Thus, we find no error in the district court‘s futility determination.14
Finally, Mrs. Swinford argues that the district court committed manifest error in denying her motion to reconsider. Her entire argument on this point is that the district court failed to properly apply our decision in Hunter to the facts of this case in ruling on the motion to dismiss. As we explained above, however, Hunter is factually distinct from the instant case and does not control. Accordingly, we find no error under our abuse of
IV. Conclusion
For the reasons above, we conclude that the district court properly considered the body camera footage when ruling on the defendants’ motion to dismiss under our incorporation-by-reference doctrine and properly granted qualified immunity to the individual officers. Furthermore, we find no error in the district court‘s denial of Mrs. Swinford‘s request for leave to amend her complaint or its order denying her motion for reconsideration. Accordingly, we affirm the district court‘s orders.
AFFIRMED.
During the pendency of this appeal, other panels of this Court decided Baker v. City of Madison, Alabama, 67 F.4th 1268, 1277 (11th Cir. 2023), which held that the incorporation-by-reference doctrine applies to police body camera footage, and Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024), which held that the incorporation-by-reference doctrine does not require the complaint to refer to the document at issue or to attach it. Under the prior panel precedent rule, this panel is bound by these rulings, and accordingly I join the majority opinion in full.1 United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
As a district judge who regularly handles motions to dismiss raising qualified immunity, I write separately to point out some practical issues with applying the incorporation by reference doctrine to body camera footage within the motion to dismiss framework, and offer some guidance on resolving them.
When reviewing a motion to dismiss, we are instructed to “accept[] the facts alleged in the complaint as true and draw[] all reasonable inferences therefrom in the plaintiff‘s favor.” Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). In the case of
But when a video is incorporated by reference, Baker instructs that “we accept the video‘s depiction instead of the complaint‘s account . . . and view the facts in the light depicted by the video.” 67 F.4th at 1278 (citations omitted). Unlike a document, a video can depict numerous subjects moving independently at varying distances and speaking over each other at varying degrees of audibility. When there are multiple videos providing different viewpoints of the same event, the task is even more complicated.
At the motion to dismiss stage, the district court usually has only a complaint, the videos, and the parties’ briefs, the latter of whiсh by design are structured around competing narratives and theories of the case and thus do not neatly map to each other. Compare this with the more orderly summary judgment framework where the parties would have been required to organize their arguments as to the contents of the videos into discrete factual assertions, permitting the district court to engage in the more familiar process of disregarding portions of the record not cited and focusing on whether the record actually supports a given factual assertion.
While motions to dismiss governed by Baker and Johnson do not require conversion to summary judgment, my read of those cases is that they do not foreclose conversion as an exercise of discretion. Exercising this discretion will often lead to a more orderly presentation of the merits and facilitate appellate review. Any concerns about subjecting a defendant to discovery prior to a ruling on the motion can be avoided by sharply narrowing the scope of discovery to those issues necessary for resolution of the converted motion under
Notes
Setting aside the fact that the district court never dismissed Mrs. Swinford‘s ADA claim—because no ADA claim was in the original complaint—we find no error in the district court‘s determination that she failed to state a viable ADA claim in her proposed amended complaint. The district court determined that Mrs. Swinford failed to “allege sufficient facts to support [an inference that the chief of police] had actual knowledge that ACCPD‘s dispatch program discriminated against mentally ill individuals in deciding whether to deploy [the SRT] or that he failed adequately to respond.” On appeal, she does not make any argument as to why this determination was incorrect. Accordingly, she has waived any argument to this effect. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).