ORDER
This action arises from injuries Plaintiffs’ teenage son, D.M.C., sustained when Defendant Fulton County Police Officer Corporal Benjamin W. Griggs (“Officer Griggs” or “Defendant Griggs”) shot him during an attempted arrest.
I. BACKGROUND
On the evening of July 28, 2011, D.M.C.
Fulton County Police Officer Michael Guin was conducting a “business check” of
Officer Guin approached the driver’s side door of the Honda Accord “in a felony stop manner” with his gun drawn in a low, ready position. (Fulton Cnty. SMF ¶¶ 14-15; Pis.’ Resp. SMF ¶¶ 14-15; Guin Dep. 63:4-10, 67:5-7, 74:13-75:25; Guin Dep. Ex. 1, at 2.) Officer Guin then issued a verbal command to the occupants to keep their hands visible. (Fulton Cnty. SMF ¶ 16; Pis.’ Resp. SMF ¶ 16; Guin Dep. 77:12-19; Guin Dep. Ex. 1, at 2.) When Officer Guin opened the driver’s side door, Darden took his foot off the brake to exit the vehicle and it began to roll backwards toward Guin’s patrol car. (Fulton Cnty. SMF ¶ 18; Pis.’ Resp. SMF 1118; Guin Dep. 80:23-81:11; Guin Dep. Ex. 1, at 2.) To stop the vehicle, Officer Guin reached in behind Darden and pulled the emergency brake located in between the front driver’s seat and passenger seat. (Fulton Cnty. SMF ¶ 19; Pis.’ Resp. SMF ¶ 19; Guin Dep. 81:11-17; Guin Dep. Ex. 1, at 2.) During this commotion, D.M.C., who was in the front passenger seat, took the opportunity to exit the vehicle and flee the scene on foot, running in the direction of an adjacent Motel 6. (Fulton Cnty. SMF ¶ 20; Pis.’ Resp. SMF ¶ 20; Guin Dep. 81:18-25.) Darden made no attempt to pursue D.M.C. and instead focused his efforts on detaining Darden. (Pis.’ Add’l SMF ¶4; Fulton Cnty.’s Resp. to Pis.’ Add’l SMF ¶ 4; Guin Dep. 83:15-84:17.)
Officer Guin holstered his gun, pulled Darden out of the vehicle, and placed one handcuff on Darden’s right wrist. (Fulton Cnty. SMF ¶21; Pis.’ Resp. SMF ¶21; Guin Dep. 82:1-13, 88:20-89:3; Guin Dep. Ex. 1, at 2.) Darden refused to comply with Officer Guin’s request that he place his left hand behind his back and actively resisted Officer Guin’s attempt to place the handcuff on his left wrist. (Guin Dep. 82:11-83:14, 84:17-86:3, 86:20-88:17; Guin Dep. Ex. 1, at 2-3.) Officer Guin keyed up his shoulder microphone to request that dispatch order responding units to step up their response. (Guin Dep. 82:21-83:14.) During the struggle, Darden was able to turn his body toward Guin and a “push- and-shove match” ensued. (Guin Dep. 84:20-24; Guin Dep. Ex. 1, at 3.)
In order to regain control, Officer Guin drew his ASP expandable baton and struck Darden once in the upрer right forearm and once on the lower calf region. (Guin Dep. 84:24-86:25; Guin Dep. Ex. 1, at 3.) Officer Guin was unable to deliver strong blows with the baton because of his close proximity to Darden and the vehicle, and Darden broke free of Officer’s Guin’s grasp. (Guin Dep. 85:7-87:22; Guin Dep. Ex. 1, at 3.) Darden lunged toward Officer Guin, briefly reached for the baton, and then swung at Officer Guin with his right arm and the handcuff brushed Officer Guin across the face. (Guin Dep. 86:25-90:7; Guin Dep. Ex. 1, at 3.) At that point, Officer Guin drew his gun and Darden took off running in the direction of the Motel 6. (Guin Dep. 88:16-90:25; Guin Dep. Ex. 1, at 3.) Guin gave a brief chase after Darden, radioed dispatch to provide the location of the subject and a clothing description, and decided to wait for the
Several officers who heard Officer Guin’s radio call for backup during the struggle with Darden began arriving on the scene, including Defendant Griggs and Detective Marty McHugh. (Guin Dep. 113:12-22; McHugh Dep. 11:4-12:25; Griggs Dep. 208:10-210:25, 212:2-213:18.) At approximately 12:40 a.m., Officer Corey Henry of the K-9 unit of the Fulton County Sheriffs Department also responded with a search dog, “Marco.” (Guin Dep. Ex. 1, at 3; Henry Dep. 9:4-13:9, 17:14-19:16, 45:8-10.) Officer Guin provided a description of the suspect and informed the officers what had happened, including that the driver of the stolen vehicle had assaulted him before fleeing the scene on foot.
The officers followed the K-9 “Marco” into the woodline as he tracked the scent of the suspect through a fencе separating the Chevron and the Motel 6. (Griggs Dep. 218:11-219:4; Griggs Dep. Ex. 2, at 3; McHugh Dep. 18:10-16.) Defendant Griggs followed Officer Henry and the K-9 to the left toward some abandoned houses or structures behind the motel, and Detective McHugh fanned out in the opposite direction. (McHugh Dep. 20:12-24:20; Griggs Dep. 218:11-220:20.) The search area behind the Motel 6 was thickly wooded and dark requiring the officers to use flashlights and night vision units for visibility. (Griggs Dep. 124:8-24, 134:7-135:12, 136:2-4, 216:13-24; Griggs Dep. Ex. 2, at 3; Henry Dep. 9:20-10:5, 20:18-21:1, 23:1-24, 45:1-46:8; McHugh Dep. 35:1-19, 52:5-18.) Shortly after crossing the fence line, Detective McHugh and Defendant Griggs heard the dog begin to bark and Officer Henry yell commands to someone to “get down” and “let me see your hands.”
Defendant Griggs rushed over toward Officer Henry and the K-9, and as he came around the tree he also observed a black male — now known to be D.M.C.— step out from behind a tree and start to slowly go down on one knee with his hands out in front of him. (Griggs Dep. 221:14-25; Griggs Dep. Ex. 2, at 4.) Because it was dark, Defendant Griggs illuminated the suspect with the tactical light on his gun and began issuing verbal commаnds to “get on the ground.” (Griggs Dep. 124:8-25, 221:20-25.) At that time, he could only see the suspect’s left hand but not his right hand. (Griggs Dep. 132:22-133:2, 221:22-23.) Defendant Griggs instructed Officer Henry that he was going to “go hands on”
According to Defendant Griggs, because the suspect “was not getting on the ground,” had only “gone to one knee,” and was acting “like he was unsure of what he was going to do,” Defendant Griggs — in one continuous motion — moved in and push-kicked
Defendant Griggs was trained as an officer to index the weapon, i.e., meaning that an officer does not put his finger on the trigger or inside the trigger housing/guard of the gun unless the officer intends to shoot. (Griggs Dep. 115:21-23, 121:3-16, 206:25-207:6.) In terms of whether he violated any training protocols on the night of the incident, Griggs testified that “obviously [his] finger wasn’t indexed” as his training required, because his finger must have been on the trigger when the gun discharged.
Griggs further testified that his actions in having his gun drawn during the search and in “taking [D.M.C.] down” were not unreasonable under the circumstances because he had been informed that the suspect he was looking for had assaulted another police officer before fleeing the scene and that D.M.C. was not fully and promptly complying with their commands to get down on the ground. (Griggs Dep. 86:8-13, 207:19-208:4, 216:25-217:7.) He testified, however, that it was not a “deadly-force situation,” there was no reason to shoot D.M.C., and that he did not intend to shoot him. (Griggs Dep. 133:24-134:6, 207:4-208:5.) Defendant Griggs further testified that D.M.C. was not immediately complying with the officers’ numerous commands to get on the ground, but that he was not actively resisting arrest. (Griggs Dep. 262:21-263:15.)
Following the incident, Defendant Griggs was placed on paid administrative leave for a period of time and was temporarily restricted from participating in SWAT call-outs. (Griggs Dep. 18:118.) Defendant Griggs went before the Fulton County Response to Resistance Review Board as a result of the accidental discharge of his gun. (Griggs Dep. 102:14-103:19.) The Review Board recommended that Defendant Griggs reсeive additional firearm training. (Griggs Dep. 104:13-19.) Defendant Griggs received additional training in September 2011 on the use of force in low lighting situations, preventing unintentional/accidental discharges, and the use of flashlights and tactical gun-mounted lights. (Griggs Dep. 104:23-116:25, 119:20-121:7, 121:24-127:9, 128:18-131:20; Nable Dep. 35:3-14, 61:20-63:1, 96:10-22.) Prior to this incident, Defendant Griggs had not received specific
The Fulton County Police Department requires all officers to complete a minimum of eleven (11) weeks of Georgia Peace Officer’s Standard and Training Council (“P.O.S.T.”) mandate training and to receive P.O.S.T. certification. (Fulton Cnty. SMF 1148; Pis.’ Resp. SMF ¶ 48; Stiles 2nd Aff. ¶ 5.) Fulton County Police Officers receive mandated training on peace officer liability, firearms, and use of force, which includes lessons as to restraint and how to use the appropriate level of force when conducting an arrest. (Fulton Cnty. SMF ¶ 49; Pis.’ Resp. SMF ¶ 49; Stiles 2nd Aff. ¶ 6.) The Fulton County Police Department also requires all officers to complete at least forty (40) hours of in-service training annually, twice the number of hours required to maintain P.O.S.T. certification, and conducts Roll-Call Training at various precincts, which provides a regular method for updating the skills, knowledge and abilities of sworn personnel between formal training sessions. (Fulton Cnty. SMF ¶¶ 50-51; Pis.’ Resp. SMF ¶¶ 50-51; Stiles 2nd Aff. ¶¶ 7-8.) The Fulton County Police Department conducts training audits throughout the year to track officer training to determine whether additional training is required. (Fulton Cnty. SMF ¶¶ 53-54; Pis.’ Resp. SMF ¶¶ 53-54; Stiles 2nd Aff. ¶ 9.) In addition to training officers to index their weapon, the Fulton County Police Department trains its officers to avoid going “hands-on” with arrestees/detainees while their firearms are drawn. (Fulton Cnty. SMF ¶¶ 58-59; Stiles 1st Aff. ¶¶ 4-5.) Officers are trained to holster their weapons when they lay hands on a suspect to make an arrest. (Fulton Cnty. SMF ¶ 60; Stiles 1st Aff. ¶ 5.)
II. STANDARD OF REVIEW ON SUMMARY JUDGMENT
The Court must grant summary judgment if the record shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FedR.Civ.P. 56(a). A factual issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc.,
When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party’s favor. See Reeves v. Sanderson Plumbing Prods., Inc.,
III. ANALYSIS
Plaintiffs’ Complaint, as amended, asserts the following claims: (1) a constitutional claim for unlawful use of excessive and deadly force in violation of the Fourth Amendment against Defendant Griggs; (2) a constitutional claim for defective customs and policies and failure to train against Fulton County pursuant to Monell v. Dep’t of Soc. Servs. of NY,
Defendant Griggs seeks summary judgment on Plaintiffs’ constitutional claim on the grounds that (1) the shooting of D.M.C. was unintentional and therefore cannot serve as the basis of a Fourth Amendment violation, and (2) he is entitled to qualified immunity because (a) there was arguable probable cause to pursue D.M.C. with his gun drawn, and (b) his actions and non-deadly use of force were reasonable under the circumstances. In addition, Defendant Griggs seeks summary judgment on Plaintiffs’ state law claims based on official immunity because there is no evidence that he acted with malice in accidentally shooting D.M.C.
Plaintiffs also seek summary judgment against Defendant Griggs asserting that (1) they are entitled to judgment as a matter of law on the Fourth Amendment claim because Defendant Griggs admits he intentionally used force that was not justified under the circumstances, and (2) they are entitled to judgment as a matter of law on their state law negligence claim because Defendant Griggs admits that he placed his finger on the trigger of his gun when he had no discretion to deviate from an absolute ministerial duty not to do so.
Finally, Fulton County seeks summary judgment on Plaintiffs Monell claims because (1) Plaintiffs failed to identify any relevant policy or custom of Fulton County that caused D.M.C.’s injury, and (2) Plaintiffs failed to demonstrate that Fulton County was on notice of a need for additional training to prevent similar accidental shоotings or was aware of a pattern or practice of similar violations.
A. Plaintiffs’ Fourth Amendment Claim Against Defendant Griggs
1. Excessive Force and the Fourth Amendment
The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses the right to be free from the use of excessive force in the
The Supreme Court has cautioned that “[t]he 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,
The Supreme Court and the Eleventh Circuit have recognized that “the right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham,
[I]n order to balance the necessity of using some force attendant to an arrest against the arrestee’s constitutional rights, a court must evaluate a number of factors, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Lee,
Obviously, “using deadly force in a situation that cleаrly would not justify its use is unreasonable under the Fourth Amendment.” Mercado v. City of Orlando,
(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.
Vaughan,
2. Excessive Force and Accidental Shootings
The Eleventh Circuit has not decided whether or in what circumstances the purely accidental discharge of a firearm implicates the Fourth Amendment. However, a handful of federal courts
Although the Eleventh Circuit has not addressed the precise issue presented by the facts of this case, in Vaughan v. Cox,
The relevant facts in Vaughan are as follows: The Coweta County Sheriffs Department received a report of a stolen truck, including a description of the suspected thief, traveling along Interstate 85 south of Atlanta. Id. at 1325-26. Two deputies were dispatched to search for the stolen truck. Id. at 1326. After spotting a truck matching the description, the deputies hatched a plan to stop the vehicle and arrest the suspect. Id. While tracking the truck, one of the deputies made efforts to determine whether it was indeed the stolen vehicle. Id. He observed two men in the truck’s cab and the plaintiff, who was riding in the passenger seat, matched the description of the suspect. Id. The deputy unsuccessfully attempted a “rolling roadblock” in an attempt to stop the truck, causing a collision between the deputy’s cruiser and the truck. The driver of the truck did not pull over, but instead accelerated. The deputy repositioned his cruiser, unholstered his weapon, rolled down the passenger side window, and readied himself in case the truck’s driver made aggressive moves in his direction. Id. After he pulled alongside the truck and turned on his rooftop lights, the driver accelerated in an attempt to flee. Id. at 1327. The deputy then fired three rounds into the truck without warning, hitting the plaintiff, puncturing his spine, and paralyzing him. Id. The deputy’s plan had been to disable either the truck or the driver so that he could force the truck off the road. Id. However, a high-speed chase ensued, the deputy made several more attempts stop the vehicle, and ultimately the chase ended after the truck’s driver lost control, jackknifed and collided with a cement median. Id.
The district court concluded that the plaintiff, Vaughan, was not subjected to a “seizure” within the meaning of the Fourth Amendment, reasoning that the defendant intended to fire his shots at the driver of the truck and the truck itself, but did not intend to fire at Vaughan. Id. at 1327, 1328. In assessing the plaintiffs excessive force claim, the Eleventh Circuit in Vaughan looked first at whether there was in fact a seizure within the meaning of the Fourth Amendment under the Supreme Court’s Brower test — that is whether the plaintiff was subjected to the “intentional acquisition of physical control” by a government actor. Id. at 1328 (citing Brower v. Cnty. of Inyo,
It is clear that “apprehension by the use of deadly force is a seizure.” Tennessee v. Garner,471 U.S. 1 , 7,105 S.Ct. 1694 ,85 L.Ed.2d 1 [] (1985). However, the Supreme Court has held that a seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied.” Brower,489 U.S. at 597 ,109 S.Ct. 1378 [ ] (emphasis in original). The question remains whether [the officer’s] action in firing his weapon at the truck and its driver can be deemed “means intentionally applied” to seize Vaughan.
Id. The officer argued that because he did not intend to shoot the plaintiff, the plaintiff did not suffer a Fourth Amendment seizure. Id. The Eleventh Circuit disa
The Supreme Court has cautioned against a too finely drawn reading of “means intentionally applied.” Brower,489 U.S. at 598 ,109 S.Ct. 1378 [ ]. It is not necessary for the means by which a suspect is seized to conform exactly to the means intended by the officer; otherwise courts could be compelled to conclude that “one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg.” Id. at 598-99,109 S.Ct. 1378 [ ].
Id. at 1329 (emphasis added). Having found that the plaintiff was subjected to a seizure, the Vaughan Court then analyzed the claim under Gamer’s three-part reasonable/deadly force test and found that under the plaintiffs version of the facts, a “reasonable jury could find that [the officer] acted unreasonably in firing at the pickup truck.”
Aside from the Eleventh Circuit’s decision in Vaughan, this Court has found only two district courts in this Circuit addressing Fourth Amendment liability for accidental shootings occurring during the course of an arrest. However, both cases were decided before the Supreme Court’s holding in Graham
In Matthews v. City of Atlanta, a court in this District held that a police officer’s nonvolitional shooting of a suspect does not constitute a seizure within the meaning of the Fourth Amendment.
In Gamer, the shooting was a volitional act. Here it was not and, according to the court’s understanding of the word “seizure,” it carries with it a very definite connotation of something or someone being put under the control of another as a result of acts intentionally taken.... Here, because there is no evidence that the officer intended to shoot the plaintiffs decedent or that he did so volitionally, the shooting does not constitute a seizure within the meaning of the fourth amendment.
Id. at 1556 (noting that “[i]n fact, the decedent had already been seized prior to the shooting incident; i.e., when the officer drew his gun and ordered plaintiffs decedent and his companion to exit the truck”). The Matthews Court distinguished its holding from other cases involving nonvoli-tional shootings where courts inexplicably “focused on whether the officer acted reasonably in drawing his weapon in the first instance,” despite the plaintiffs having sought “recovery for the firing of the gun — not the drawing of it.” Id. at 1557 (citing Patterson v. Fuller,
Contrary to the opinion in Matthews, another court in this District held that a victim of an accidental police shooting may be entitled to redress under Section 1983 even though his Fourth Amendment rights were not intentionally violated. See Patterson v. Fuller,
Courts in other Circuits have also viewed accidental police shootings in opposing ways. The Second Circuit Court of Appeals, in Dodd v. City of Norwich, declared that the Fourth Amendment only applies to shootings designed fоr “the purpose of seizing” the suspect, not accidents that happen post-seizure.
[i]t makes little sense to apply a standard of reasonableness to an accident. If such a standard were applied, it could result in a fourth amendment violation based on simple negligence. The fourth amendment, however, only protects individuals against “unreasonable” seizures, not seizures conducted in a “negligent” manner. The Supreme Court has not yet extended liability under the fourth amendment to include negligence claims.
Id. at 7-8,
On the other hand, the Sixth Circuit in Pleasant v. Zamieski, viewed an accidental shooting as separate from other potential police conduct that may constitute an actionable seizure as that term is used in the Fourth Amendment.
In McCoy v. City of Monticello, the Eighth Circuit Court of Appeals chose not to decide the question whether “after an intentional Fourth Amendment seizure has occurred, does an accidental shooting implicate the Fourth Amendment?”
The court in McCoy found that the officers’ conduct effected a seizure, relying on the Supreme Court’s holding in Brower that a Fourth Amendment “seizure” requires an intentional act by a governmental actor and that “the Fourth Amendment addresses ‘misuse of power,’ ... not the accidental effects of otherwise lawful government conduct.” Id. (quoting Brower,
With respect to the officer’s conduct that ultimately resulted in the shooting, the McCoy Court reasoned that the “relevant inquiry [was] not whether [the officer’s] act of firing his gun was ‘objectively reasonable,’ but whether, under the totality of the circumstances, his act of drawing his gun was ‘objectively reasonable.’ ” Id. Based on the totality of the circumstances, the court’s view was that an objectively reasonable officer could have believed that
This Court will follow the more persuasive second line of reasoning that an accidental firearm discharge resulting in an unintentional shooting during the course of an arrest may constitute excessive force under the Fourth Amendment if the officer’s course of conduct preceding the shooting is unreasonable under the circumstances. The Supreme Court’s key decisions on excessive force — and the Eleventh Circuit’s Vaughan decision — inform the Court’s determination. First, the Supreme Court held in Tennessee v. Garner that “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”
In Scott v. Harris, the Supreme Court discussed its earlier holding in Brower, upon which a majority of the courts that come out the other way on this issue rely, stating:
The only question in Brower was whether a police roadblock constituted a seizure under the Fourth Amendment. In deciding that question, the relative culpability of the parties is, of course, irrelevant; a seizure occurs whenever the police are “ ‘responsible] for the termination of [a person’s] movement,’ ” [cit.] regardless of the reason for the termination. Culpability is relevant, however, to the reasonableness of the seizure — to whether preventing possible harm to the innocent justifies exposing to possible harm the person threatening them.
In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fíne a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun "with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achievе that result.
Id. at 598-99,
3. Reasonableness of Griggs’ Actions in Carrying Out the Arrest of DM. C.
Having concluded that Griggs’ unintentional shooting of D.M.C. during the course of the arrest does not insulate him from liability under the Fourth Amendment,
Plaintiffs argue that because D.M.C. was unarmed, compliant and non-resistant, Griggs was not justified in push-kicking D.M.C. to the ground to accomplish his arrest. According to Plaintiffs, “by definition, any level of force is excessive if there is no justification for the use of force at all.” However, “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” McCullough v. Antolini
The Court cannot find that Officer Griggs’ conduct during the arrest was objectively unreasonable under the Fourth Amendment as a matter of law warranting summary judgment in Plaintiffs’ favor. First, the Court cannot conclude that it was unreasonable for Defendant Griggs to have his gun drawn during the pursuit. Defendant Griggs and the other officers pursuing D.M.C. reasonably believed that he was the suspect who fled the scene after assaulting Officer Guin. The incident occurred at night, in nearly pitch-black conditions, and Defendant Griggs was using his weapon-mounted tactical light to improve visibility. Defendant Griggs had no way of knowing whether D.M.C. was armed, as one of D.M.C.’s hands was concealed from his view. See Jackson v. Sauls,
Second, although Officer Griggs was trained to re-holster his weapon before “going hands on,” the Court cannot conclude that his failure to put the gun away before “push-kicking” D.M.C. to the ground was so unreasonable as to amount to excessive force. By necessity, Officer Griggs was using his weapon-mounted tactical light so that he could locate D.M.C. Griggs testified that he had turned off the light in order to holster the weapon before making contact with D.M.C., but was unable to see and had to turn the light back on. He therefore requested that one of the other assisting officers “put some light” on D.M.C. because he needed to holster the weapon before moving in for the arrest. However, the other officers were each more than twenty-five (25) yards away from Griggs and D.M.C. at the time. After pushing D.M.C. to the ground so that he could not run or cause immediate threat, Officer Griggs began to holster the weapon so that he could place the handcuffs on him when the gun went off. Pleasant v. Zamieski,
For the same reasons, the Court also finds that Officer Griggs’ use of the “push-kick” was not excessive under the circumstances. Although D.M.C. was not actively resisting the officers’ commands to “get down on the ground,” he hadn’t fully complied and seemed to be hesitating. Griggs testified that after locating D.M.C., the entire incident happened within a matter of seconds. Without the benefit of 20/20 hindsight, Officer Griggs reasonably believed that his actions were necessary and justified under tense and quick-moving circumstances. This Court “cannot [ ] use
Having found that Griggs’ actions did not constitute an unreasonable seizure in violation of D.M.C.’s Fourth Amendment rights, the Court need not address the second prong of the qualified immunity analysis — whether the constitutional right in question was clearly established at the time of the violation. Accordingly, the Court GRANTS Defendant Griggs’ Motion for Summary Judgment [Doc. 59] on this claim, and DENIES Plaintiffs’ Cross-Motion for Partial Summary Judgment [Doc. 73],
B. Plaintiffs State Law Negligence Claim Against Officer Griggs
Defendant Griggs failed to respond in opposition to Plaintiffs’ Cross-Motion for Summary Judgment on their state law negligence claim. However, Griggs contends in his own motion that he is entitled to official immunity because he acted in the scope of his discretionary authority as a police officer and no evidence has been presented that suggests he acted with malice in shooting D.M.C. In response, Plaintiffs assert that (1) the doctrine of official immunity does not protect Griggs against liability for negligence in the performance of ministerial acts such as the proper firing of his weapon pursuant to his training, and (2) a jury could reasonably find that Griggs acted with actual malice or a deliberate intent to harm. As a result of his failure to respond at all to Plaintiffs’ motion, Griggs is deemed to have admitted Plaintiffs’ statement of material facts submitted in support of their cross-motion for summary judgment to the extent such facts are not otherwise contradicted by the record.
Official immunity under Georgia law “offers limited protection from suit to governmental officers and employees.” Gilbert v. Richardson,
1. Discretionary v. Ministerial Duty
Whether Griggs is entitled to official immunity is ultimately a question of
where the relevant facts pertaining to immunity are in dispute, the trial court is without authority to resolve those factual issues on a motion for summary judgment. A jury must resolve the factual issues, after which the trial court “determined whether the employee’s acts were discretionary or ministerial and, thus, whether the employee is entitled to official immunity.
Glass,
A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.
Grammens,
The Georgia Supreme Court has held that generally a law enforcement officer exercises discretion in responding to an emergency call, engaging in high speed chases, executing a search warrant, and firing a gun at a suspect. Cameron v. Lang,
Officer Griggs admitted that “he had an absolute duty to keep his finger off the trigger at all times, unless he intended to shoot, and that he had no discretion to do otherwise” pursuant to his police training. (Pis.’ SMF ¶¶ 24, 28-29.) Officer Griggs further admits that by failing to properly index his finger, he failed to follow that training. (Id. ¶¶ 29-31.) In addition, according to Assistant Chief Stiles,
the Fulton County Police Department maintained and continues to maintain policies prohibiting officers from placing their fingers inside the trigger guard of their firearms. Officers receive state mandated and in-service training requiring officers to only place their fingers inside the trigger guard of their weapons only when they reasonably believe*1325 their life is in danger or that they will suffer serious bodily injury.
(Stiles 1st Aff. ¶ 4.) Similarly, Officer Griggs testified that:
A. We are trained specifically what we call index the weapon, meaning you don’t put your finger in the trigger well or on the trigger.
Q. And that — is that something that you’re definitely not supposed to do?
A. Yeah. I mean you’re trained when you’re not using/ — when you don’t want the gun to fire, you want to keep your finger on the — it actually rests on the slide.
Q. I mean is that basically a judgment call on your part as to whether to follow that or hot, or is that something that you’re always required to follow if you don’t intend to shoot the weapon?
A. No. That’s just how you’re trained. You’re trained to keep your finger there until you need to put it on the trigger to pull the trigger.
Q. And are you supposed to do — are you supposed to act in accordance with that training?
A. Yes.
(Griggs Dep. 115:21-116:14.)
Q. And since you didn’t mean to shoot him, there was absolutely no circumstance under which your training would have — or your policies would have allowed you to have your finger on the trigger; is that right?
A. I shouldn’t have had my finger on the trigger.
(Griggs Dep. 233:5-9.) In addition, Lieutenant Nable testified that:
Q. ... if you have your finger inside the trigger guard or anything inside the trigger guard, there is a danger of being able to depress both?
A. Yes.
Q. And that’s why you train officers not to have their finger inside the trigger guard unless they intend to shoot?
A. And that would be true with any gun, not just this gun....
Q. In fact, that’s one of the four cardinal rules?
A. Right.
Q. Don’t put your finger on the trigger?
A. Right.
Q. So that’s not something ... that’s discretionary with the officer or anything?
A. No.
Q. That’s a mandatory no-no?
A. Correct.
(Nable Dep. 75:8-76:6.)
Based on this evidence, Plaintiffs assert that “the duty of a police officer to keep their finger off the trigger when not intending to shoot is an absolute duty that directs the officer to perform a specific action in a specific circumstance” in which there “is no room for deliberation.” (Pis.’ Resp. Br. at 23.) Thus, according to Plaintiffs, the evidence establishes that Griggs violated a ministerial duty and therefore is not entitled to official immunity for Plaintiffs’ negligence claim as a matter of law.
In Glass v. Gates, the Georgia Court of Appeals found that an analogоus situation created a factual dispute over whether a correctional officer was performing a ministerial or discretionary act.
The unwritten departmental policy, as described by [defendant], required a work detail supervisor such as [defendant] to take specified action (call the work camp and request a service truck) in a specified situation (when a tractor became stuck). As reflected in [defendant’s] statement, the departmental policy did not require the work detail supervisor to exercisе his judgment or discretion, but rather imposed a ministerial duty.
Id. (quoting Grammens,
The Georgia Court of Appeals in Gish v. Thomas addressed whether a sheriffs deputy was entitled to official immunity for the accidental death of a prisoner who committed suicide with the deputy’s gun.
*1327 [wjhile the Sheriffs Office does provide some guidance on prisoner transport, nothing in the policies can be said to render the act of prisoner transport ministerial; Deputy Gilmer still had wide discretion in handling his job and much of the specifics of prisoner transport were left to his personal judgment. Further, it is clear that the danger inherent in prisoner transport and the judgment that must be applied to handle different transportees renders the act discretionary.
Id. at 905. The plaintiffs in Gish argued, however, that the issue was not whether the act of transporting prisoners was discretionary or ministerial, but whether the specific acts of storing weapons in a patrol car and the handcuffing of inmates were discretionary or ministerial acts. Id. The Gish Court recognized, without deciding, that those specific acts could constitute the relevant inquiry for purposes of determining the deputy’s entitlement to official immunity. However, because it was undisputed that at the time of the deceased’s death, the sheriffs office did not have written departmental policies or procedures governing handcuffing inmates during transport or the securing of weapons in patrol cars, the Court of Appeals found that trial court properly rejected the plaintiffs argument that there were established policies and procedures giving rise to a ministerial duty in the case.
In support of its own motion for summary judgment, Fulton County submitted evidence that the Fulton County Police Department maintained and continues to maintain policies prohibiting officers from placing their fingers inside the trigger guard of their firearms unless they reasonably believe their life is in danger or that they will suffer serious bodily injury. (Fulton Cnty. SMF ¶ 5.) Officer Griggs was aware of the Fulton County policy that under no circumstances is an officer to have his finger on the trigger unless he intends to use deadly force. (Id. ¶45.) Plaintiffs have presented evidence, undisputed at this point, that Officer Griggs admitted that there was no need to use deadly force under the circumstances and that he should not have had his finger on the trigger. Here Griggs testified that he violated the County’s training protocols on the night of the incident by stating “obviously my finger wasn’t indexed” as his training required, because his finger must have been on the trigger when the gun discharged.
2. Malice or Intent to Injure
The Georgia Constitution provides that state officers and employees “may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” GA. CONST., art. I, § 2, ¶ IX(d). When determining whether a public agent is entitled to official immunity for discretionary acts, a court must evaluate the agent’s subjective intent. Jordan v. Mosley,
Plaintiffs contend that malice may be inferred
Q. You did intend to use, you know, reasonable force. Well, you intended to use force to subdue this guy, right?
A. Yes, I did.
Q. But you didn’t intend to shoot him?
A. Correct.
Q. Okay. Now, under the continuum of force, it really wasn’t reasonable to use any force against [D.M.C.], was it?
A. I don’t see any need at that time to use any force. I didn’t — I don’t see any need to use any force.
Q. Okay. So the force that you did use was unreasonable, wasn’t it?
A. By shooting him?
Q. Taking him down and then shooting him[?].
A. Taking him down I don’t think was unreasonable. He had, in our — to my knowledge, had fought an officer and fled the scene, I learned, being apprehended. At that time he wasn’t completely compliant with our command to get down on the*1329 ground. He was kind of in the process. He wasn’t there yet when I decided to knock him over. But shooting him was not.
(Griggs Dep. 207:7-208:5.) Upon discovering that his gun had discharged, Griggs said “Oh, God I shot him. I AD’d,” meaning that he had an accidental discharge. (Griggs Dep. 30:1-16, 231:4-12.) The department audio tapes captured Officer Griggs making multiple requests for an ambulance and emergency EMS personnel in which he can be heard speaking to D.M.C. and saying “please hang in there, I’m sorry, I’m so sorry, please hang in, stay with me.” (Griggs Dep. 231:4-233:25; Griggs Dep. Ex. 2, at 5.) Moreover, Plaintiffs state in their own presentation of the facts that “Griggs admits that he accidentally pulled the trigger and shot D.M.C.” (Pis.’ SMF ¶ 22.) Griggs admits that there was no need to use deadly force under the circumstances of this case (and he in fact did not intend to use deadly force). Based on Griggs’ own admissions, there is no reason to question the truthfulness of his characterization of the shooting as unintentional — i.e. not motivated by malice or planned. See Luna v. Ridge,
Accordingly, in light of this evidence the Court finds that no jury could reasonably conclude that Officer Griggs acted with malice or with the intent to injure D.M.C. when he pushed him to the ground to make the arrest or by accidentally shooting him in the back of the head. Plaintiffs’ Cross-Motion for Partial Summary Judgment [Doc. 73] on this basis is therefore DENIED.
C. Plaintiffs’ Monell Claims Against Fulton County
The parties disagree whether there are genuine issues of material fact as to whether an official custom or policy of Fulton County, including the failure to train officers how to prevent accidental discharges, was a moving force behind the violation of D.M.C.’s constitutional rights. As the Court previously found that Officer Griggs’ actions did not amount to excessive force in violation of D.M.C.’s Fourth Amendment rights, Plaintiffs’ claim against Fulton County cannot survive summary judgment. Best v. Cobb Cnty.,
IV. CONCLUSION
For the above and foregoing reasons, the Court GRANTS IN PART AND DE
Despite the fact that all federal claims have now been dismissed, the Court exercises its discretion to retain supplemental jurisdiction over Plaintiffs’ state law negligence claim pursuant to 28 U.S.C. § 1367. “The policy of supplemental jurisdiction is to support the conservation of judicial energy and avoid multiplicity in litigation. Having a state court rehash issues that have already been argued in federal court is [] likely to cause multiplicity in litigation.” Parker v. Scrap Metal Processors, Inc.,
The parties are DIRECTED to engage in mediation within 45 days of this Order. The case should be referred to the next available Magistrate Judge for mediation purposes. The Consolidated Pretrial Order shall be filed within 30 days of the conclusion of mediation.
Notes
. Although Plaintiffs have submitted no such evidence in the summary judgment record, Plaintiffs contend that "D.M.C. suffered extensive brain damage from the shooting and has no recollection of the events of that night.” (Pis.’ Cross-Mot. for Partial Summ. J. at 13, n. 2.)
. The docket reflects two motions filed by Fulton County, Docs. 60 and 89. However, the second motion filed at Doc. 89 is identical to the first motion, Doc. 60, except that it is redacted consistent with the Court’s Order on the parties’ motion to seal. (See Order at Doc. 87.) Accordingly, the first motion at Dоc. 60 is DENIED AS MOOT.
. Defendant Griggs failed to respond to Plaintiff’s Cross-Motion for Partial Summary Judgment. Accordingly, Plaintiff’s Statement of Material Facts, [Doc. 73-2], are deemed admitted, unless otherwise contradicted by the record evidence.
. D.M.C. was 16 years old at the time of the incident. (Griggs Dep. 51.T4-16.)
. Darden testified that they offered a ride to a third young man, but that he did not know this individual’s name. (Fulton Cnty. SMF ¶3; Pl.’s Resp. SMF ¶ 3; Darden Dep. 9:16-10:2, 12:2-15, 40:21-41:8.) This unknown male rode in the rear passenger seat. (Dar-den Dep. 12:17-19.)
. Officer Henry testified that he was only aware of a description of the driver and was not aware that there was a passenger who had fled the scene before the altercation with Officer Guin. (Henry Dep. 44:15-25.) Detective McHugh overheard Officer Guin mention that the passenger had fled the scene during his struggle with the driver and that both individuals had run in the direction of the Motel 6. (McHugh Dep. 17:21-18:16.)
. Officer Henry testified that he did not instruct the suspect to get on his knees, but that the suspect did that on his own. (Henry Dep. 47:21-23.) However, Detective McHugh and Defendant Griggs both testified that they heard Officer Henry issuing verbal commands to the suspect. (McHugh Dep. 24:22-26:16; McHugh Dep. Ex. 1, at 1; McHugh Dep. Ex. 2, at 1; Griggs Dep. 221-13; Griggs Dep. Ex. 2, at 4.)
.Detective McHugh testified that when he saw the suspect he was sitting on the ground behind a tree. (McHugh Dep. 30:12-31:24.)
. "Going hands on” means that the officer is going to place handcuffs on the suspect. (Griggs Dep. 133:22-23.)
. Defendant Griggs testified that a "push-kick” is "just a push-kick forward. I didn’t rear back and kick him. I just pushed him over with my foot.” (Griggs Dep. 180:6-24.)
. Officer Henry’s incident report and deposition testimony indicate that after he saw the suspect "starting to get down on his knees [he] then observed Officer Griggs run over to him and push him down to the ground,” followed by the sound of a single gunshot. (Hеnry Dep. 18:21-24; Henry Dep. Ex. 3, at 1.) Officer Henry later testified “[a]nd then, and then he started to get down — he got down on his knees.” (Henry Dep. 47:19-20, 48:2-17.) Officer Henry also testified that he saw the suspect put his right hand up, but did not see him place his hands behind his head. (Henry Dep. 37:16-38:1, 47:7-13.)
.Griggs testified that he saw the injury to D.M.C.’s head but later learned that the bullet also went through D.M.C.’s hand, although he didn't recall seeing that on the night of the shooting. Griggs also could not explain whether D.M.C. had his hands placed behind his head at the time of the shooting. (Griggs Dep. 241:3-241:22; Griggs Dep. Ex. 2 at 5.)
. AD is the term officers use to refer to an accidental discharge. (Griggs Dep. 30:1-16.)
. There is a tape of Detective Griggs’ reaction to the shooting, his numerous radio calls for emergency medical services, and his statements to D.M.C. following the incident. (Griggs Dep. 233:14-24.)
.Defendant Griggs testified that he was not aware that his finger was on the gun’s trigger until he heard the shot. (Griggs Dep. 117:14— 20.)
. As an initial matter, to determine whether Defendant Griggs is entitled to judgment as a matter of law on Plaintiffs’ excessive/deadly force claim, the Court must accept Plaintiffs’ version of the facts and draw all justifiable inferences in their favor. Fils v. City of Aventura,
. Under the Fourth Amendment, a seizure occurs when an officer exerts intentional or willful control "by means of physical force or show of authority” to restrain the liberty of a citizen. See Brower v. Cnty. of Inyo,
. Under the Supreme Court’s pronouncement in Graham, the Fourth Amendment's " ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions malte an objectively unreasonable use of force constitutional.” Graham,
. The Court's discussion, infra, is not meant to include an exhaustive list of cases addressing accidental shootings in the context of a Fourth Amendment excessive force claim.
. Many of these cases apply a narrower construction of the Supreme Court's holding in Brower v. Cnty. of Inyo, that a Fourth Amendment "seizure” requires an intentional act by a governmental actor and that "the Fourth Amendment addresses 'misuse of power,’ ... not the accidental effects of otherwise lawful government conduct.”
.For the most part, these cases tend to follow а broad construction of the Supreme Court’s holding in Tennessee v. Gamer that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”
. On appeal, the plaintiff also argued that that even if he was not subjected to a "seizure” under the Fourth Amendment, he still may maintain a Fourteenth Amendment substantive due process claim based on his allegation that the officer’s conduct "shocks the conscience” and exhibited deliberate indifference. Vaughan,
. See Graham,
. Gilmere v. City of Atlanta,
. The Patterson court equated the concept of "negligence” with the objective reasonableness required by the Eleventh Circuit in Gil-mere.
. Dodd was decided before the Supreme Court’s holding in Graham that excessive force claims should not be analyzed under the Fourteenth Amendment’s due process standards. However, the Dodd Court relied, in part, on the Supreme Court’s analysis in Tennessee v. Garner, applying a Fourth Amendment "reasonable seizure” test.
.Although Dodd was decided before Brower, it follows the same logic as the Brower Court that a Fourth Amendment violation must be grounded on intentional conduct on the part of the officer. Dodd has been relied on by numerous district courts post-Brower in deter
. See also Watson v. Bryant,
. The Court recognizes that Brower did not say that the accidental discharge of a gun used as a bludgeon was an unreasonable seizure per se. "Indeed, if, as Graham says, excessive force cases are to be analyzed under the fourth amendment’s reasonableness standard with ‘careful attention to the facts and circumstances of each particular case,’ there can be no a priori judgments of categorical unreasonableness. The inquiry as to whether or not some action constitutes a ‘seizure’ under the fourth amendment is distinct from the inquiry as to whether an action аlready found to constitute a fourth amendment seizure is also ‘unreasonable’ under the fourth amendment. ‘Seizure’ alone is not enough for § 1983 liability; the seizure must be ‘unreasonable.’ ” Pleasant v. Zamieski,
. The Court must briefly address Plaintiffs’ argument that whether the shooting was in fact accidental, or whether it was intentional, is a credibility determination that must be made by the jury. The Court disagrees based on the undisputed evidence presented on summary judgment. Despite Plaintiffs’ argument that a jury could reasonably conclude that Griggs’ discharge of the gun was intentional, they have presented no evidence that would demonstrate a triable issue as to Griggs' intent as is their burden on summary judgment. See Tallman,
. The cases cited by Plaintiffs in which it was held that nonviolent suspects, accused of minor crimes, who have not resisted arrest were subjected to unconstitutional excessive force are therefore distinguishable. See Fils v. City of Aventura,
. Fulton County also seeks summary judgment on Plaintiffs’ state law claims against Fulton County as barred by sovereign immunity. However, Plaintiffs have not asserted any state law claims against Fulton County. Accordingly, Fulton County’s motion [Doc. 89] with respect to Plaintiffs’ state law claims is DENIED AS MOOT.
. The Gish court further found that despite the plaintiff’s reliance on various provisions of Georgia’s Peace Officer Standards and Training Council (P.O.S.T.) training manual to establish these acts as ministerial, these provisions (1) provided only general guidelines, and had not been explicitly adopted by the sheriff’s office, and (2) the deputy was never instructed to put his gun in a certain location or to handcuff a prisoner in a certain way. Gish,
. Defendant Griggs testified that he was not aware that his finger was on the gun’s trigger until he heard the shot. (Griggs Dep. 117:14— 20.)
. Plaintiffs do not rely on actual malice because they assert that there are genuine issues of material fact as to whether Griggs acted with specific intent to injure D.M.C. For the reasons set forth above, the Court finds there is not a genuine issue regarding the accidental nature of the shooting.
. United Mine Workers v. Gibbs,