United States District Court, S.D. Alabama, Southern Division
[Copyrighted Material Omitted]
For Reed Collar, parent of Gilbert Collar, deceased minor, Bonnie Collar, parent of Gilbert Collar, deceased minor, Plaintiffs: Benjamin L. Locklar, LEAD ATTORNEY, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL; Charles J. Potts, Samuel Joshua Briskman, LEAD ATTORNEYS, Briskman & Binion, P.C., Mobile, AL.
For Trevis Austin, in his individual and official capacities, Defendant: Michael E. Upchurch, LEAD ATTORNEY, David Alan Strassburg, Jr., Frazer, Greene, Upchurch & Baker, LLC, Mobile, AL.
WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the plaintiffs' motion for relief under Rule 56(d). (Doc. 21). The parties have filed briefs and other materials in support of their respective positions, (Docs. 21, 23, 31-33), and the motion is ripe for resolution.
The plaintiffs' decedent (" Collar" ) was a student at the University of South Alabama (" the University" ) when, on the night of October 5-6, 2012, he was shot and killed by the defendant, a police officer employed by the University. Count One, brought pursuant to Section 1983, claims the defendant used excessive force in violation of the Fourth and Fourteenth Amendments. Count Two is a claim for wrongful death under Alabama law. (Doc. 1).
Shortly after answering the complaint, the defendant filed a motion for summary judgment, asserting qualified immunity as to the federal claim and state-agent immunity as to the state claim. (Doc. 7). At the same time, the defendant filed a motion to stay all proceedings, including discovery, pending a ruling on his motion for summary judgment. (Doc. 10). After full briefing, the Court denied the motion to stay. (Doc. 18). The defendant took the position that discovery is never allowed before ruling on a motion raising qualified immunity, but the Court concluded that pre-ruling discovery is precluded only when the defendant's motion denies that the plaintiff's version of the facts (as measured by the allegations of the complaint) reflects the violation of a clearly established constitutional right. Because the defendant's motion for summary judgment does not assert that the plaintiffs' version of the facts is fatally deficient, and instead maintains only that his version of the facts negates the violation of a clearly established constitutional right, discovery prior to resolution of the motion is not precluded. ( Id. at 2-4).
Without filing a motion to reconsider, the defendant argues that the two Supreme Court cases on which the Court relied actually stand for the proposition that, whenever a defendant on motion for summary judgment asserts qualified immunity, the Court is required, sua sponte, to determine whether the allegations of the complaint reflect the violation of a clearly established right. (Doc. 23 at 3-6). The Court cannot agree.
The Supreme Court in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), directed that, on remand, " it should first be determined whether the actions the [plaintiffs] allege [the defendant] to have taken are actions that a reasonable officer could have believed lawful." Id. at 646 n.6. The defendant in Anderson, however, had filed " a motion to dismiss or for summary judgment," id. at 637, so it is clear he had in fact challenged the sufficiency of the complaint. Because he had done so, it was of course necessary for the trial court on remand to determine whether the allegations of the complaint reflected the violation of a clearly established right.
In Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), the Court stated that, " if the defendant does plead the immunity defense, the district court should resolve that threshold question before permitting discovery." Id. at 598. The defendant in Crawford-El, however, had prevailed on a motion to dismiss, so again it is clear that he had actually challenged the sufficiency of the complaint; there is thus no reason to believe the Supreme Court was requiring district courts to determine whether the complaint reflects the violation of a clearly established right even in the absence of a request to do so. On the contrary, immediately after identifying the district court's task as one of " determin[ing] whether, assuming the truth of the plaintiff's allegations, the official's conduct violated clearly established law," the Court promptly dropped a footnote reminding readers that, " [i]f the district court enters an order denying the defendant's motion for dismissal or summary judgment," interlocutory appeal is available. Id. at 598 & n.19. The Supreme Court thus clearly contemplated pre-discovery evaluation of the complaint only when the defendant's dispositive motion requests it.
Such a procedure is fully consistent with Circuit precedent, which places burdens on a defendant desiring qualified immunity. " Qualified immunity is an affirmative defense that may be waived." Bogle v. McClure, 332 F.3d 1347, 1355 n.5 (11th Cir. 2003). And although " qualified immunity can be pled at various stages in a case," including at trial or in a motion to dismiss, for judgment on the pleadings or for summary judgment, " all these pleadings must conform to the Federal Rules of Civil Procedure." Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002). Thus, in Skrtich, defendants who did not raise qualified immunity until their third motion to dismiss waived the right to have qualified immunity considered at that stage. Id. at 1306-07. As these cases demonstrate, a defendant cannot receive the benefit of qualified immunity without asking for it, at the proper time and in the proper manner.
Even more specifically, " [t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment," Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and this rule extends to qualified immunity arguments. Gennusa v. Canova, 748 F.3d 1103, 1116-17 (11th Cir. 2014) (trial court was not required to address an exigent circumstances argument superficially mentioned in support of a qualified immunity defense) (citing Resolution Trust ). Contrary to these opinions, the defendant here insists that the Court must address an argument that is
not merely indiscernible in, but that is utterly absent from, his motion for summary judgment. Beyond his overly expansive reading of Anderson and Crawford-El, the defendant offers no justification for ignoring this clear appellate authority.
In his opposition to Collar's Rule 56(d) motion, as in his reply brief in support of his motion to stay, the defendant asserts that the complaint fails to allege acts which, if true, violated Collar's clearly established rights. (Doc. 16 at 15; Doc. 23 at 6 & n.2). The defendant argues that these assertions compensate for his failure to make such an argument on motion for summary judgment and thereby compel the Court to evaluate the complaint before considering discovery. ( Id.). The defendant cites no authority permitting him to inject this issue by such a procedure, and the Court is dubious, especially as Skrtitch 's listing of pleadings in which qualified immunity may properly be asserted does not include anything remotely resembling the defendant's filings. Nevertheless, because the plaintiffs do not disagree with the defendant's contention but instead defend the adequacy of their complaint, the Court considers whether that pleading alleges facts which, if correct, reflect that the defendant violated clearly established law. In making this assessment, the Court " accept[s] the factual allegations in the complaint as true and views them in the light most favorable to" the plaintiffs. Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014); accord St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).
In pertinent part, the complaint alleges that Collar ingested a foreign substance that caused him to become " confused, disoriented and agitated." In this state, Collar removed all his clothes and, disrobed and obviously unarmed, sought to gain access to the campus police station to seek help for his distressing condition, first by hitting the door and then by striking the window. Collar then walked away from the building; no one else was around. The defendant exited the police station with service weapon drawn and confronted Collar, who was five inches shorter than the defendant and 50 pounds lighter. The defendant's firearm remained trained on Collar throughout their encounter. (Doc. 1, ¶ ¶ 16, 17, 21-24, 27, 33). " At no point did Gilbert Collar threaten to harm Defendant Austin, or attempt to grab Defendant Austin's weapon, or attempt to touch or strike Defendant Austin." ( Id., ¶ 34). " Nevertheless, when Gilbert Collar was yards away from Defendant Austin and not evidencing any overt, aggressive actions, Defendant Austin ... pointed his weapon at Gilbert Collar's torso and fired directly into his body essentially at point-blank range." ( Id., ¶ ¶ 35-36). When the defendant shot Collar, he knew or objectively should have known that Collar posed no imminent threat of serious bodily injury or death to the defendant or others. ( Id., ¶ 58.b, .d).
The defendant asserts he shot Collar while " attempting to arrest" him. (Doc. 31 at 9). " Fourth Amendment jurisprudence has long 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." Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir. 2010) (internal
quotes omitted). However, " [a]ny use of force must be reasonable." Id.
" Reasonableness is dependent on all the circumstances that are relevant to the officer's decision to use deadly force, including  the seriousness of the crime,  whether the suspect poses an immediate danger to the officer or others,  whether the suspect resisted or attempted to evade arrest, and  the feasibility of providing a warning before employing deadly force." Jean-Baptiste, 627 F.3d at 821. " Other considerations are  the need for the application of force,  the relationship between the need and the ...