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Shaw v. City of Selma

United States District Court, S.D. Alabama, Northern Division

March 15, 2017

EDWARD SHAW, as Personal Representative of the Estate of ANANIAS SHAW, Plaintiff,
v.
CITY OF SELMA, an Alabama Municipal Corporation; CHIEF WILLIAM RILEY, in his official and individual capacities; and OFFICER DESMOND WILLIAMS, in his Official and individual capacities, Defendants.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendants' Motion for Summary Judgment (doc. 13). The Motion has been extensively briefed and is ripe for disposition. Also pending is defendants' Motion to Strike Affidavit of Faya Rose Toure (doc. 23), as to which plaintiff did not respond within the time allotted by Civil L.R. 7(c).

         I. Nature of the Case.

         On the afternoon of December 4, 2013, City of Selma Police Officer Desmond Williams shot and killed Ananias Shaw, a 74-year old male wielding a hatchet, as he stood outside a residence in Selma, Alabama. Edward Shaw, acting in the capacity of personal representative for Shaw's estate, [1] subsequently filed a Complaint in the Circuit Court of Dallas County, Alabama on December 4, 2015, against defendants City of Selma, Chief William Riley, and Officer Desmond Williams.[2] On January 6, 2016, defendants removed the case to this District Court, with federal subject matter jurisdiction properly being invoked pursuant to the federal question provisions 28 U.S.C. § 1331, inasmuch as the face of the Complaint identifies a federal constitutional claim.[3]

         The Complaint purports to assert no fewer than 22 causes of action against defendants, sounding in theories of wrongful death, unreasonable use of force, false arrest (Fourth Amendment violation), false imprisonment (pleaded twice), policy of inadequate training and supervision, custom of police abuse (pleaded twice), custom of deliberate indifference relating to hiring, deliberate indifference to repeated complaints (pleaded twice), civil conspiracy (pleaded twice), assault and battery, false arrest (without mention of Fourth Amendment), invasion of privacy, negligence, wantonness, negligent/careless/unskillful hiring, negligent/careless/ unskillful training or supervision, tort of outrage, and violation of Article 1, Section 1 of the Alabama Constitution. (See doc. 1-1.)

         Defendants now move for summary judgment on all claims and causes of action interposed in the Complaint against all defendants.

         II. The Motion to Strike.

         Antecedent to addressing the Motion for Summary Judgment, the Court pauses to consider defendants' Motion to Strike (doc. 23). As part of his summary judgment response, plaintiff submitted the “Affidavit of Faya Rose Toure” (doc. 21, Exh. 7), who was plaintiff's co-counsel of record from March 2, 2016 (when she filed a Notice of Appearance (doc. 8)) until she was granted leave to withdraw on February 3, 2017. (See docs. 19, 20.)

         In her Affidavit, Toure touts her membership in an organization known as the “Due Process Committee, ” which “investigates complaints of due process violations and suspected inequities in the criminal justice system in Selma, Alabama.” (Toure Aff., at 1.)[4] Toure explains that this committee “led the campaign to release the video” of the Shaw shooting, and indicates that the Selma Police Department ultimately acquiesced “[b]ecause of our intervention.” (Id.) Toure then states that she “talked to several witnesses, including Sernica Walker and other employees at Church's Chicken restaurant and Betty Ford, who actually witnessed the shooting.” (Id.) Toure relates that unidentified Church's employees told her that Shaw “was a regular customer” at the restaurant, that he “was not violent” and that he “did not have a hatchet at Church's” on the day in question. (Id. at 2.) Toure goes on to write that a witness named Betty Ford told her that Shaw did not raise the hatchet or attempt to do the officers harm. (Id.) Toure then avers that she has experience in “addressing violent suspects with mental or emotional problems, ” that the Selma Police Department has requested her assistance with such matters previously, and that they never called her in the Shaw matter even though she was “available to help.” (Id.) Finally, Toure indicates that District Attorney Michael Jackson told the Due Process Committee that he was unaware of Betty Ford's observations in witnessing the shooting, and that Ford was not called to testify before the grand jury. (Id.)

         The Court agrees with defendants that the Toure Affidavit suffers from several significant defects that necessitate its deletion from the summary judgment record. As an initial matter, it is uncontroverted that plaintiff never disclosed Toure as a witness, whether in his initial disclosures pursuant to Rule 26(a)(1)(A), in discovery responses, or in supplemental disclosures pursuant to Rule 26(e). Of course, Rule 26(a) mandates disclosure of “the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Rule 26(a)(1)(A)(i), Fed.R.Civ.P. The Rule 16(b) Scheduling Order unambiguously directed that “[t]he initial disclosures required by Fed.R.Civ.P. 26(a)(1) are ORDERED to be made by the parties not later than March 16, 2016.” (Doc. 9, ¶ 4.) Yet plaintiff did not disclose Toure at that time. Similarly, Rule 26(e) calls for supplementation of Rule 26(a) disclosures “in a timely manner if the party learns that in some material respect the disclosure … is incomplete … and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Rule 26(e)(1)(A), Fed.R.Civ.P. Yet plaintiff never supplemented his Rule 26(a) disclosures to list Toure.

         By all appearances, the first notice defendants received that Toure is or might be a witness for plaintiff was the receipt of her summary judgment affidavit on February 3, 2017. That is simply too late. Under the circumstances, the Court concludes that plaintiff failed timely to disclose Toure as a witness. That omission implicates Rule 37(c)(1), which provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, … unless the failure was substantially justified or is harmless.” Rule 37(c)(1), Fed.R.Civ.P. Plaintiff has made no argument and no showing that his failure to identify Toure in a timely manner was substantially justified or harmless. Accordingly, the Court finds that striking the Toure Affidavit is an appropriate sanction pursuant to Rule 37(c)(1).[5]

         Even if plaintiff's nondisclosure of Toure as a witness did not warrant striking her affidavit pursuant to Rule 37(c)(1) (which it does), defendants' Motion to Strike would be properly granted for two independent reasons. First, insofar as Toure's Affidavit merely parrots back what Toure says witnesses told her, such testimony does not appear capable of being presented in admissible form at trial. See, e.g., Johnson v. Mobile Infirmary Medical Center, 2015 WL 1538774, *1 (S.D. Ala. Apr. 7, 2015) (“It is well settled that exhibits are properly considered for summary judgment purposes as long as they may be reduced to admissible form at trial.”); Rule 56(c)(2), Fed.R.Civ.P. (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”). The summary judgment record is devoid of any ground for concluding that plaintiff could present this evidence in admissible form at trial. Certainly, it would be impermissible hearsay for plaintiff to call Toure to the stand to testify to what other people told her as substantive evidence of what actually happened that day. Nor could plaintiff call certain of these witnesses (Sernica Walker and other unnamed employees at Church's Chicken) to testify about their observations at trial, because plaintiff never disclosed Walker or those other individuals as witnesses, pursuant to Rules 26(a)(1) and 26(e). Finally, plaintiff could not call Toure in his case-in-chief to reiterate the words of Betty Ford (who is listed as a plaintiff's witness and whose video interview has been separately filed as plaintiff's Exhibit 8). Such testimony must come in, if at all, through Ford herself.

         A second independent reason for striking the Toure Affidavit is that it includes substantial information that is irrelevant to the issues joined in this case for trial. For example, Toure's role in the Due Process Committee, that Committee's activities, and the Committee's discussions with the District Attorney concerning facts and testimony that were or were not known to the grand jury are simply not relevant to the claims and issues joined in the Complaint.

         For all of these reasons, the Motion to Strike (doc. 23) is granted. The Affidavit of Faya Rose Toure (doc. 21, Exh. 7) is stricken from the record, and will not be considered or weighed in any manner in the adjudication of defendants' Motion for Summary Judgment.

         III. Background Facts.[6]

         A. Circumstances Leading to the Dispatch Call.

         Shortly after 2:00 p.m. on December 4, 2013, Aninias Shaw attempted to enter the Church's Chicken restaurant on Broad Street in Selma, Alabama. Shaw was known to the restaurant staff as a longtime customer who “had came in there other times and cursed us out and stuff.” (Lindsey Dep. (doc. 13, Exh. 6), at 5-6, 8.) To the restaurant's general manager, Ricky Austin, Shaw was known as a customer who had caused problems necessitating police intervention in the recent past. (Austin Dep. (doc. 13, Exh. 7), at 5-6, 11.)[7] Most notably, just days before the incident in question, Shaw had entered the crowded lobby of the Church's Chicken restaurant brandishing a pocketknife with its blade extended, and had proceeded to “poke at” customers with the knife. (Lindsey Dep., at 7-8.) A Church's employee who witnessed Shaw's behavior called the police. (Id.) Three officers arrived within minutes, prompting Shaw to leave the premises after a brief confrontation in which Shaw “poked at” an officer with his pocketknife, and the officer responded by placing his hand on his service weapon. (Id. at 9-10.)

         Back to the afternoon of December 4, Austin observed Shaw approaching the entrance of the Church's Chicken restaurant armed with a hatchet. (Austin Dep., at 6.) Austin reached the door first, and told Shaw, “[N]o, you cannot come in.” (Id.)[8] In response, Shaw “got kind of name calling, ” but eventually walked away when Church's staff once again called the police. (Id.) At 2:19 p.m., a Dallas County dispatcher directed Selma police officers to the scene with the call “disorderly conduct in progress.” (Doc. 13, Exh. 12.)

         B. The Shooting.

         One recipient of the dispatch was City of Selma Police Officer Desmond Williams, who was driving his patrol car approximately two minutes away from the Church's Chicken restaurant. (Williams Dep. (doc. 13, Exh. 2), at 10-11.) Officer Williams had been hired by the Selma Police Department in August 2009, and had completed a 480-hour course at the Alabama Criminal Justice Training Center in November 2009. (Doc. 13, Exh. 11.) He had also completed numerous continuing education courses on topics such as use of force, interviewing individuals with mental illnesses, search and seizure, and firearm safety. (Id.) Upon receiving the dispatch, Officer Williams was contacted via radio by Detective Ronald Jones, who was completing a traffic stop in that area and had spotted Shaw in an alley near the Church's Chicken hollering and screaming to himself. (Jones Dep. (doc. 13, Exh. 4), at 6, 10.) Detective Jones believed that Shaw had gone into an abandoned laundromat building at the corner of Griffin and Washington, and could hear a person who he thought was Shaw being loud and “raising Cain” inside that building. (Id. at 18.) Detective Jones notified Officer Williams by radio that Shaw was in that abandoned laundromat. (Williams Dep., at 11.) Altogether, three Selma Police officers (the third being Officer Daniel Boone) responded to the call and arrived at the laundromat almost contemporaneously.

         Officer Boone was familiar with Shaw, having dealt with him several times and having arrested him for public intoxication and disorderly conduct in the past. (Boone Dep. (doc. 13, Exh. 13), at 11-12.) When all three officers had arrived and exited their vehicles, Officer Boone went inside the abandoned building alone “to try to talk to Mr. Shaw and get him out” so that the officers “can talk and see what's going on, ” particularly given that there had been multiple instances of Shaw being disorderly at Church's Chicken. (Id. at 11, 14, 16.) Officer Boone asked Shaw to come out and talk. (Id. at 18.) In response, Shaw bent down and picked up a hatchet. (Id.) Officer Boone felt threatened, reasoning, “Mr. Shaw had a hatchet in his hand and posed a threat to me. If I would have let him leave, he would have posed a threat to the community as well.” (Id. at 19.) When he saw Shaw pick up the hatchet and begin walking towards him, Officer Boone immediately drew his weapon and backed out of the building. (Id. at 25, 27.) Both Officer Boone and Shaw, still wielding the hatchet, exited the building, coming outside to where Detective Jones and Officer Williams were.[9]

         The tragic events unfolding over the next two-plus minutes are the essence of this lawsuit. They are also captured to a large degree on the recording taken from Officer Williams' body camera and microphone, found in the record as Defendants' Exhibit 9. (See doc. 13, Exh. 9.) The audio-video recording at Exhibit 9 is accepted as true for summary judgment purposes, notwithstanding any contrary evidence in the record; provided, however, that other evidence may be considered insofar as it fleshes out events as to which the video is unclear or ambiguous.[10]Review of Exhibit 9 establishes the following: The video begins with Officer Williams in his patrol vehicle, stating that he is en route to the area of Church's Chicken in reference to a subject that is disorderly, whose whereabouts are now near Washington Street and Griffin Avenue. A voice over the radio says, “He is inside the building, ” or words to that effect. At approximately the 1:05 mark of the video, [11] Officer Williams parks his car, exits and walks over to a dilapidated building reading “Towns Laundramat [sic].” Two other officers (Detective Jones and Officer Boone) are seen bending down and peering inside through a darkened opening at ground level. At the 1:40 mark, one of the officers (Officer Boone) goes inside through the opening, as the other officer (Detective Jones) says, “He'll fight you in a minute.”

         At the 1:50 mark, Detective Jones says, “You see his shoes right there?” and Officer Williams (who is now bending down to peer into the opening) answers affirmatively, with both officers chuckling. Officer Boone can be heard inside telling Shaw, “I just want to talk to you.” Moments later, at the 1:57 mark, Officer Boone is heard (still inside the building) saying firmly and clearly, “Put the axe down.” Officer Williams loudly repeats the command, “Put the axe down, ” approximately five times over the next 10 seconds, by which time Shaw has emerged from the building, still carrying the axe, and is now close by the other officers. At the 2:12 mark, Officer Williams, still loudly and forcefully saying “put the axe down” over and over again, draws his service firearm and points it at Shaw with both hands. Shaw appears on the screen at around 2:14, and commences walking away from the building, cursing and yelling as he does so, and saying, “I ain't putting a goddamned thing down.” As Officer Williams and the other officers repeat the command to put the axe down, Shaw responds, “F*** you, n*****” and says “I ain't putting shit down.” He then turns and starts walking down the street at the 2:20 mark. Officer Williams continues to point his firearm at Shaw, and one of the other officers is seen holding a long stick (an ASP, or police expandable baton).[12] Officer Williams says, “go in the house, go go go go go, ” apparently directed at nearby members of the public who are not visible on the video. By the 2:40 mark, Shaw is walking west on Griffin Avenue - in the direction of the Church's Chicken, which was less than a block away - with all three officers walking along with him, still commanding him to put the axe down as Shaw yells back at them, mostly incoherently. Officer Williams calls in on his radio, “Be advised the subject is armed with an axe.” One of the other officers is heard saying, “Mr. Shaw, put the axe down. We won't hit you, man.”

         By the 3:00 mark, Shaw is walking through what appears to be a residential or mixed-use area. Several people can be seen standing outside a house a short distance from where Shaw is. The officers continue to command Shaw to put the axe down and reassure him “we want to talk to you.” However, Shaw keeps walking away, still grasping the weapon in his right hand. At the 3:10 mark, Shaw has slowed down and almost stopped walking. Following from a close distance, Officer Williams raises his firearm with both hands and again commands him to put the axe down. Beginning at the 3:20 mark, the situation escalates at lightning speed. Shaw steps off the street and into a grassy strip in front of a house (where several people are seen sitting on a porch), wheels and yells at the officers. At 3:23, Shaw turns to face Officer Williams, then shouts, “Shoot it! Shoot it!” Officer Williams responds, “I will pop you, ” as Shaw faces him from just a few feet away. At 3:25, Shaw moves suddenly toward Officer Williams; however, Shaw's right arm and the exact position of the axe are out of the frame. At 3:26, Shaw - still moving toward, and by this time less than five feet away from, Officer Williams - yells, “Shoot it!” again. His right arm and the axe remain outside the frame. Immediately (and still at the 3:26 mark), Officer Williams fires a single gunshot at Shaw's chest from very close range. Shaw falls to the ground.[13] From the moment Shaw picks up the hatchet inside the laundromat until the fatal shot is fired 90 seconds later, the officers command him to “put the axe down” at least 28 times that can be heard on video.[14] Paramedics arrived, and Shaw was pronounced dead at the scene. (Doc. 13, Exh. 1, at 3.)

         In his deposition, Officer Williams explained that Shaw “was a threat to myself and to the other people around us. … His intentions were to hurt myself and possibly other people around us.” (Williams Dep., at 34.) When asked why he shot Shaw when he did, Officer Williams answered, “When he raised his axe and came towards me with it. … It was raised above his head and come towards me.” (Id. at 36.) Similarly, Detective Jones testified that Shaw “goes directly at Williams.” (Jones Dep., at 47.) Detective Jones elaborated that Shaw “raised the hatchet above his head … [a]nd charged, ” taking two or three steps toward Officer Williams before the shot was fired. (Id. at 57-58.) Officer Boone's testimony was that “Mr. Shaw crossed a little ditch and then turned around at Officer Williams and began to raise his axe, and Officer Williams fired one shot.” (Boone Dep., at 41.) Witness Donald Jones similarly testified that Shaw raised the hatchet before Officer Williams shot him. (D. Jones Dep. (doc. 13, Exh. 5, at 8-9.)[15]

         IV. Summary Judgment Standard.

         Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

         V. Analysis.

         A. Fourth Amendment Excessive Force Cause of Action.

         In Count 2 of the Complaint, plaintiff asserts a § 1983 claim for excessive force, alleging that Officer Williams violated Shaw's Fourth Amendment right to be free from unreasonable searches and seizures. On summary judgment, Officer Williams invokes the doctrine of qualified immunity, which “offers complete protection for government officials sued in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (citation and internal quotation marks omitted). “In order to receive qualified immunity, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. … Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citations and internal quotation marks omitted). In evaluating whether a plaintiff has met that burden, “[t]he threshold inquiry … is whether [the] plaintiff's allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation omitted).[16]

         “[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, the critical question for evaluating whether a particular application of force is excessive for Fourth Amendment purposes is whether it was objectively reasonable. See, e.g., Smith v. LePage, 834 F.3d 1285, 1294 (11th Cir. 2016) (“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and the inquiry is an objective one.”) (citation and internal quotation marks omitted). “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (citation omitted). In performing this balancing exercise, courts must carefully scrutinize the totality of the circumstances, “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.” Id. (citation omitted). Recently, the Eleventh Circuit concluded that, even when the first and third factors are absent, the presence of the second factor - whether the suspect poses an immediate threat - may justify entry of summary judgment for the officer on an excessive force claim. See Davidson v. City of Opelika, --- Fed.Appx. ----, 2017 WL 164315, *3-4 (11th Cir. Jan. 17, 2017) (where reasonable officer would have believed that suspect was pointing a gun at him, suspect objectively posed a grave and immediate threat that rendered the use of deadly force not excessive). Simply put, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, use of deadly force does not violate the Constitution.” Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (citation and internal quotation marks omitted). “[T]he second factor can be reduced to a single question: whether, given the circumstances, the suspect would have appeared to reasonable police officers to have been gravely dangerous.” Id. (citation and internal quotation marks omitted).

         The uncontested summary judgment record establishes that, at the moment Officer Williams fired the fatal gunshot, Shaw would have appeared to reasonable police officers to be gravely dangerous. Shaw was holding a deadly weapon - the hatchet - in his right hand. He had refused to comply with literally dozens of pointed, direct commands by law enforcement officers during the previous 90 seconds to relinquish that deadly weapon. He had displayed open hostility and erratic behavior, including a stream of profanity and often incoherent invective directed at Officer Williams and his colleagues. At the decisive moment, Shaw abruptly stopped walking away from Officer Williams, wheeled around to face him, screamed “shoot it! shoot it!” and either charged or lunged toward Officer Williams, still holding the hatchet in his right hand at a distance of no more than a couple of feet away from the officer. Both Officer Williams and numerous other witnesses testified that Shaw was raising the hatchet as he did so, as if preparing to strike Officer Williams.[17] In that moment, Shaw's aggressive and unpredictable behavior while armed with a deadly weapon rendered him gravely dangerous to any reasonable observer. In that moment, a reasonable officer would have believed that Shaw posed a grave and immediate threat to Officer Williams' safety. In that moment, Officer Williams' use of deadly force against Shaw did not violate the Fourth Amendment. See, e.g., Martinez v. City of Pembroke Pines, 648 Fed.Appx. 888, 893-94 (11th Cir. Apr. 21, 2016) (officer's use of deadly force was in compliance with Fourth Amendment where the suspect was unresponsive to commands and, with loose handcuffs swinging from his wrist as a weapon, suddenly advanced to within a few feet of the officer).[18] “This is exactly the type of tense, uncertain and rapidly evolving crisis envisioned by the Supreme Court.” Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir. 2009) (citation and internal quotation marks omitted).

         In so concluding, the Court has considered multiple counterarguments raised by plaintiff. First, plaintiff presents a series of arguments second-guessing the police officers' decisions to confront Shaw in the abandoned laundromat, to follow him down the street, and to point a firearm at him. Those contentions are rejected for the reasons set forth infra, in the context of plaintiff's false arrest / false imprisonment claims.[19] Second, plaintiff contends that “[m]ost importantly, the decedent was without fault in the encounter.” (Doc. 21, at 11.) This assertion cannot be reconciled with the clear summary judgment record; indeed, the video unambiguously establishes that Shaw refused more than two dozen lawful commands by Selma police officers to “put down the axe, ” that he cursed and yelled at the officers, that he behaved in a hostile and erratic manner, and that in the three seconds preceding the fatal shot, Shaw charged or lunged at Officer Williams yelling “shoot it! shoot it!” while Shaw was still holding a deadly weapon in his right hand. Given these uncontroverted record facts, plaintiff's portrayal of Shaw as being “without fault in the encounter” is simply counterfactual.[20] Third, plaintiff's arguments that “Williams had no probable cause to believe the decedent was going to attack him with the axe” because Shaw “simply turned around to make a comment” (doc. 21, at 11, 16) fail for precisely the same reasons. Again, the video evidence unmistakably shows Shaw suddenly screaming and charging at Officer Williams, closing the distance to be within arm's length of him and still holding the hatchet in his right hand despite dozens of police directives to put it down. Under the circumstances, it was entirely reasonable for Officer Williams to believe that Shaw was going to attack him with the hatchet, and to employ deadly force to protect himself from such an attack. See Singletary, 804 F.3d at 1181 (“[a]s to deadly force, a police officer may use such force to dispel a threat of serious physical harm to either the officer or others”); Penley, 605 F.3d at 851 (plaintiffs “do not contest that their son refused to comply with repeated commands to drop his weapon. Non-compliance of this sort supports the conclusion that use of deadly force was reasonable.”); Garczynski, 573 F.3d at 1169 (“At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.”) (citations omitted); Martinez, 648 Fed.Appx. at 893-94 (“Plaintiff claims there was no indication he intended to harm King when he advanced toward him, but it was reasonable for King to conclude otherwise. King was not required to try and divine Plaintiff's subjective intent.”).

         Fourth, plaintiff's assertion that Officer Williams “provoked the decedent to turn around, by following him unlawfully with a loaded weapon trained at the back of the decedent's head” (doc. 21, at 12) is factually and legally misguided. As a factual matter, no reasonable observer watching the video could conclude that Officer Williams provoked Shaw to attack him. Officer Williams was attempting to defuse a tense and rapidly evolving situation by directing an erratic, hostile, armed suspect to relinquish his deadly weapon. No one will ever know why Shaw refused the officers' instructions and instead lunged toward Officer Williams while still carrying his axe. But it does not matter. On this record, no reasonable finder of fact could attribute Shaw's conduct to “provocation” by defendants. Even if plaintiff could make a factual showing of provocation, this argument would fail to overcome Officer Williams' cloak of qualified immunity because there was no clearly established law declaring it unconstitutional for a police officer to approach a suspect or “provoke” a confrontation. See, e.g., Davidson, 2017 WL 164315, at *3-4 (rejecting argument that “Davidson disputes that there was any rapidly developing, uncertain, and tense situation until Hancock created one, ” in light of binding authority forbidding courts from using hindsight to assess reasonableness); Rachel v. City of Mobile, Ala., 112 F.Supp.3d 1263, 1281 (S.D. Ala. 2015) (where plaintiff argued that officers “provoked a violent situation” by approaching an emotionally disturbed person, finding nothing in the language of the Fourth Amendment or Supreme Court or Eleventh Circuit decisions that “speak to the constitutionality of the antecedent act of approaching the suspect or ‘provoking' a confrontation”). Fifth, plaintiff would rely on other officers' testimony that he says disapproves of Officer Williams' actions or establishes that other officers “knew the decedent wouldn't hurt him.” (Doc. ...


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