Treneshia DUKES, Plaintiff-Appellant, v. Nicholas DEATON, in his individual capacity, Steve Branham, in his individual and supervisory capacity, Defendants-Appellees.
No. 15-14373
United States Court of Appeals, Eleventh Circuit.
January 26, 2017
843 F.3d 1035
Our point is not to take a stand on any side of this debate—we are, after all, bound by Willingham and Garcia—but rather to suggest that, given the role and complexity of race in our society, and the many different voices in the discussion, it may not be a bad idea to try to resolve through the democratic process what “race” means (or should mean) in Title VII. Cf. Juan F. Perea, Ethnicity and Prejudice: Reevaluating ‘National Origin’ Discrimination under Title VII, 35 WM. & MARY L. REV. 805, 861 (1994) (proposing that Congress amend Title VII to protect against discrimination based on ethnic traits).6
V
Ms. Jones told CMS that she would not cut her dreadlocks in order to secure a job, and we respect that intensely personal decision and all it entails. But, for the reasons we have set out, the EEOC‘s original and proposed amended complaint did not state a plausible claim that CMS intentionally discriminated against Ms. Jones because of her race. The district court therefore did not err in dismissing the original complaint and in concluding that the proposed amended complaint was futile.
AFFIRMED.
Jack Reynolds Hancock, Arash Ali Sabzevari, Forest Park, GA, Wayne Steven Melnick, Freeman Mathis & Gary, LLP, Brian Richard Dempsey, Quintairos, Prieto, Wood & Boyer, P.A., Atlanta, GA, for Defendants-Appellees.
Before WILLIAM PRYOR, and ROSENBAUM, Circuit Judges, and UNGARO,* District Judge.
This appeal requires that we decide whether a police officer who threw a diversionary device, known colloquially as a “flashbang,” into a dark room occupied by two sleeping individuals, without first visually inspecting the room, is entitled to qualified immunity against a complaint of excessive force,
I. BACKGROUND
On July 19, 2010, a special agent with the Narcotics Unit of Clayton County, Georgia, obtained a warrant to search Jason Ward‘s apartment. The application for the warrant stated that a confidential informant had observed a “small quantity of a green leafy substance suspected to be marijuana” in the possession of Ward. The application also stated that Ward had several arrests for possession of marijuana, sold narcotics from his apartment, and was known to carry a silver nine-millimeter handgun. The application sought a “no-knock” provision because “drug dealers commonly utilize weapons, dogs, and barricades to hinder law enforcement in the execution of their duties.” A magistrate judge approved the no-knock provision.
Ward resided in a two-bedroom apartment on the first floor of an apartment complex. The front door to the apartment lay halfway down a short hallway. A window in Ward‘s bedroom faced an outdoor courtyard. Adjacent to Ward‘s bedroom, a living room with sliding glass doors opened onto a small balcony overlooking the courtyard.
To execute the search warrant, Stephen Branham, the commander of the county SWAT team, prepared an operational plan with four teams: Alpha, Bravo, Charlie, and Delta. Alpha was the “entry team.” Its job was to breach the main door to Ward‘s apartment and secure the persons inside. Bravo was the support team. Its job was to wait outside and enter the apartment through the sliding glass door if help was needed. Deaton was a member of Bravo team. Charlie was a diversion team. Its job was to divert Ward‘s attention by performing a “break and rake” on his bedroom window. A break and rake is a tactic in* which an officer breaks and clears out all of the glass in a window. This tactic is used to cover a room until the rest of the officers make entry. It is also used as a diversionary tactic. Delta team, composed of only Officer Suzanne Bennett, was also a diversion team. Bennett‘s job was to deploy a “bang-pole,” a stick with a flashbang on the end of it, on the outside wall of the apartment.
At 5:00 a.m. on July 21, the SWAT team members met to review the operational plan. Half an hour later, the SWAT team executed the warrant. Ward and his girlfriend, Treneshia Dukes, were asleep in the bedroom of Ward‘s apartment. Ward was awakened by a “boom” and then heard his “window break and shattering.” Next, he remembered “Treneshia screaming,” telling “her to get down,” then grabbing the “pistol up under my head—up under my pillow,” and “kicking into the hallway.” Ward never discharged his gun. Dukes heard a “boom, and then [heard] the window like rattling and shattering ..., and like as I‘m waking up I just seen an object coming towards me.” Dukes did not see who threw the object because she “was asleep.” After the object hit her and exploded, Dukes ran into the bathroom where she was detained by the police.
The SWAT team detonated three flashbangs during the search. Bennett and Malette deployed their flashbangs as the operational plan prescribed. Deaton deployed the third flashbang. He was the only officer outside the window with a flashbang and testified that he threw his flashbang outside the window.
Although Deaton argues that his flashbang detonated outside the apartment, we construe the facts and draw all inferences from the evidence in the light most favorable to the non-movant, Dukes. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Viewed in that light, Deaton threw the flashbang through the bedroom window where it landed near Dukes. Dukes testified that an object came through the window; that she was under a comforter; that the object landed on her right thigh; that the object “flashed” and “exploded“; that the explosion “blinded” her; and that the sound from the object “discombobulated” her, causing her run “into the [bedroom] wall.” Several witnesses who saw the bedroom after the search testified that the walls were covered in black residue consistent with an explosion. For example, Andrea Ward, who was asleep in the second bedroom of the apartment the morning of the raid, testified that “the bedroom looked like it had been on fire, the window was busted out. The room was a mess and there was a black something, smoke and stuff on the
Dukes suffered severe burns across both thighs and her right arm that Deaton testified were consistent with the detonation of a flashbang. She was admitted to the hospital for three days after the raid. Ward was arrested and later convicted of being a felon in possession of a firearm.
Dukes filed a complaint against Officer Deaton and Commander Branham in the district court. The complaint alleged a violation of Dukes‘s right to be free from excessive force under the Fourth Amendment,
After the close of discovery, Branham and Deaton moved for, and the district court granted, summary judgment. The district court inferred in Dukes‘s favor that Deaton threw a flashbang that landed on Dukes, but concluded that Deaton was entitled to qualified immunity against the claim of excessive force, official immunity against the claims of assault and battery, and that Branham was entitled to qualified immunity against the claim of supervisory liability.
II. STANDARD OF REVIEW
We review de novo whether the officers are entitled to immunity. Hoyt v. Cooks, 672 F.3d 972, 981 (11th Cir. 2012) (official immunity); Townsend v. Jefferson Cty., 601 F.3d 1152, 1157 (11th Cir. 2010) (qualified immunity). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III. DISCUSSION
Dukes challenges the grants of immunity to both Deaton and Branham. Dukes argues that the district court erred when it granted Deaton qualified immunity against her claim of excessive force, when it granted Deaton official immunity against her claims of assault and battery, and when it granted Branham qualified immunity against her claim of supervisory liability. These arguments fail.
Both officers are entitled to immunity. Although we conclude that Deaton‘s conduct violated the Fourth Amendment, qualified immunity protects him from suit because his violation was not clearly established in law when he acted. And official immunity protects Deaton from Dukes‘s complaint of assault and battery because she offers no evidence that he threw the flashbang with the intent to injure her. Qualified immunity also protects Branham because his subordinate‘s constitutional violation was not clearly established.
A. Deaton is Entitled to Qualified Immunity.
“Qualified immunity protects ... officers from liability in [section] 1983 actions as long as ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The officer bears the initial burden to prove that he acted within his discretionary authority, Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), which neither party disputes in this
To determine whether an officer is not entitled to qualified immunity at summary judgment, we employ a two-part inquiry. First, we ask “whether the facts, [t]aken in the light most favorable to the party asserting the injury, ... show [that] the officer‘s conduct violated a [federal] right.” Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015) (first and third alterations in original) (quoting Tolan v. Cotton, — U.S. —, 134 S.Ct. 1861, 1865, 188 L.Ed.2d 895 (2014)). Second, we ask “whether the right in question was ‘clearly established’ at the time of the violation.” Id. (quoting Tolan, 134 S.Ct. at 1866). When we perform this analysis, we “may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S.Ct. at 1866. Our function at summary judgment is to “determine whether there is a genuine issue for trial,” not to weigh the evidence. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
As a threshold matter, Dukes argues that the record supports a factual inference that Deaton intentionally threw the flashbang at Dukes, but we disagree. In support of her argument, Dukes cites the testimony of Deaton and Branham that their training requires a visual inspection of an area before they deploy a flashbang into that area. This testimony does not warrant the inference that Deaton looked into the bedroom, saw Dukes, and threw the flashbang toward her. Dukes‘s argument would require us to infer that Deaton followed his training in one way by looking into the room, but ignored his training in another way by purposefully harming a bystander, Dukes. Although we must draw all inferences in favor of the non-movant at summary judgment, those inferences must be plausible. Mize, 93 F.3d at 742-43. The record does not support a reasonable inference that Deaton intentionally threw the flashbang at Dukes.
1. Deaton Violated the Fourth Amendment.
Dukes argues, and we agree, that Deaton‘s deployment of the flashbang constituted excessive force in violation of the Fourth Amendment. Official action constitutes excessive force when it is objectively unreasonable. Salvato, 790 F.3d at 1293. To measure the objective reasonableness of official action, we weigh “the quantum of force employed” against “the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by flight.” Id. (citation omitted). But we do not apply these factors mechanically. Id. Whether an officer‘s actions are “objectively reasonable” is a function of “the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citation omitted).
The facts construed in the light most favorable to Dukes establish that Deaton used excessive force. Deaton‘s conduct posed a significant risk of harm. He threw a flashbang that can generate heat in excess of 2,000 degrees Celsius into a dark room in which the occupants were asleep. He also failed to inspect the room, as he was trained to do, to determine whether bystanders, such as Dukes, occupied the room or if other hazards existed. And there existed minimal need for Deaton‘s use of force. True, the warrant stated that an informant advised law enforcement that
The decisions of our sister circuits support our conclusion that Deaton‘s conduct was unconstitutional. Our sister circuits have held that an officer‘s failure to perform a visual inspection before throwing a flashbang into an area weighs against reasonableness. Estate of Escobedo v. Bender, 600 F.3d 770, 785 (7th Cir. 2010); Boyd v. Benton Cty., 374 F.3d 773, 779 (9th Cir. 2004). And they have held that the use of a flashbang in an area occupied by bystanders, like Dukes, similarly weighs against reasonableness. Bender, 600 F.3d at 786; Boyd, 374 F.3d at 779; cf. Krause v. Jones, 765 F.3d 675, 679 (6th Cir. 2014); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 973 (7th Cir. 2003). The totality of the circumstances establishes that Deaton violated the Fourth Amendment.
2. Deaton‘s Violation Was Not Clearly Established.
To overcome qualified immunity, Dukes also must prove that Deaton “violated a statutory or constitutional right that was ‘clearly established’ at the time of the challenged conduct.” Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Official conduct violates clearly established law if the “contours of [a] right [are] sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right.” Al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (alterations in original) (internal quotation marks omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Because no precedent of the Supreme Court, our Circuit, or the Supreme Court of Georgia has addressed the constitutionality of flashbangs, Dukes must establish that “a general constitutional rule already identified in the decisional law ... appl[ies] with obvious clarity” to Deaton‘s conduct. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citations omitted).
To satisfy this narrow exception, official conduct must be so egregious that “every objectively reasonable government official facing the circumstances would know that the official‘s conduct did violate federal law.” Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011) (en banc) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)). When this exception for obvious clarity is “properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.” Al-Kidd, 563 U.S. at 743, 131 S.Ct. 2074 (internal quotation marks omitted) (citations omitted). It allows an officer to make “reasonable mistakes” about the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Dukes argues that “no decisional law is necessary to inform a reasonable officer that he should not blindly throw a [flashbang] grenade into the bedroom of a small apartment, at 5:30 a.m., ... occupied[] by people who ... were doing nothing other than sleeping,” but this portrait ignores facts stated in the warrant and the purpose of a flashbang. Ward carried a weapon. The warrant stated that drug trafficking occurred in his apartment. A flashbang is meant to disorient and avoid physical harm. And the operational plan permitted the officers to use a flashbang if needed. In the absence of binding caselaw to the contrary, Deaton, though badly mistaken, could have reasonably believed, based on the facts known to the officers on the morning of the search, that throwing a flashbang into Ward‘s bedroom was not excessive force.
Our conclusion that Deaton violated the Fourth Amendment, but that the contours of the right were not clearly established, also finds support in the decisions of our sister circuits. In Boyd, for example, the Ninth Circuit ruled that the detonation of a flashbang in a room with up to eight bystanders without first looking was unconstitutional, but that the right was not clearly established. 374 F.3d at 783-84. In Bing ex rel. Bing v. City of Whitehall, the Sixth Circuit also decided that the use of a second flashbang violated the Fourth Amendment, but that the violation was not obvious. 456 F.3d 555, 571 (6th Cir. 2006). Consistent with these decisions, we affirm the ruling that Deaton is entitled to qualified immunity.
B. Deaton is Entitled to Official Immunity.
With two exceptions, the
Dukes argues that the district court erred when it granted Deaton official immunity against her tort claims. Dukes argues that Deaton negligently performed a ministerial act when he deployed the flashbang, or, in the alternative, that the deployment of a flashbang was a discretionary act that Deaton performed with actual malice. Both arguments fail.
Deaton‘s use of a flashbang was discretionary. It called for the “exercise of personal deliberation” because an officer must “examin[e] the facts” and “act[] on [those facts] in a way not specifically directed.” Bajjani, 647 S.E.2d at 57 (citation omitted). The operational plan contemplated the specific use of two flashbangs, but vested every team member with the authority to use flashbangs. The search of Ward‘s apartment called for the kind of “split-second decision[s]” the Supreme Court of Georgia has held are discretionary. E.g., Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341, 344 (2001) (holding that a high-speed police chase was discretionary).
Dukes‘s argument that we should evaluate the relevant conduct more narrowly fails. She argues that we should examine Deaton‘s failure to perform a visual inspection of the bedroom. Dukes argues that Deaton‘s training to inspect an area before deploying a flashbang, makes this conduct ministerial. But her argument runs counter to Georgia law. In Phillip v. Hanse, for example, the Supreme Court of Georgia held that a decision of a police officer to engage in a high-speed chase, not his several violations of a police manual, was the relevant conduct for the purpose of official immunity. 281 Ga. 133, 637 S.E.2d 11, 12 (2006). And the Supreme Court of Georgia held that the decision to engage in a high-speed chase is discretionary. Id. Like Hanse, Deaton‘s decision to deploy a flashbang was discretionary despite the violation of his training.
Deaton is entitled to official immunity under Georgia law. An officer is entitled to official immunity for discretionary acts performed in his official capacity unless he acted with actual malice or intent to injure. Bajjani, 647 S.E.2d at 60. Actual malice means “a deliberate intention to do wrong, and does not include implied malice, i.e., the reckless disregard for the rights or safety of others.... A deliberate intention to do wrong ... must be the intent to cause the harm suffered by the plaintiffs.” Id. (citations omitted). Although Dukes asks us to infer that Deaton acted with actual malice, no evidence in the record suggests that Deaton “inten[ded] to cause the harm suffered by” Dukes. Id. She cites Deaton‘s training to inspect an area and argues that he likely knew people were in the room, but these facts, at most, establish recklessness. We agree with the district court that Deaton is entitled to official immunity under Georgia law.
C. Branham is Entitled to Qualified Immunity.
Dukes makes two arguments that Branham is liable for Deaton‘s conduct under a theory of supervisory liability: that Branham failed to train his officers in the proper use of flashbangs or, in the alternative, that Branham personally participated in the deployment of the flashbang. The first argument fails, and Dukes failed to preserve the second argument.
Dukes argues that Branham failed to train his subordinate officers in the use of flashbangs and that this failure exposes him to supervisory liability for Deaton‘s violation of the Fourth Amendment, but we disagree. A supervisor can-
The district court ruled, and we agree, that Dukes offered her alternative argument too late in an improper attempt to amend her complaint. “A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citation omitted). “At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Deaton and Branham.