Duncan v. Ward

Ricky Duncan, Plaintiff, v. Deputy Jimmy Ward, et al., Defendants.

7:19-cv-00447-LSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

May 19, 2021

MEMORANDUM OF OPINION

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 v. Connor, 490 U.S. 386, 396-97 (1989). Deputy Jimmy Ward and Officer Shane Deason made a split-second judgment to use deadly force when, after an extended car chase, the plaintiff stepped out of his vehicle with a loaded firearm in hand. Because their use of force was reasonable and consistent with clearly established law, their motions for summary judgment are due to be granted.¹

I

Viewed in the light most favorable to the plaintiff, the facts are as follows.²

On the morning of March 4, 2018, Officer Jim Gray of the Centerville Police Department stopped a 2003 Buick Century. The Buick had two occupants: Ricky Duncan and a female passenger.

After learning about an outstanding warrant for Duncan's arrest, Officer Gray ordered him to "step out of the car." But rather than comply, Duncan screamed, cursed, and warned Officer Gray to not "f****** touch [his] god d*** car." He also called Officer Gray a "mother f*****" and swore he was "not going to jail for this s***."

After defying eleven orders to "step out" and submit to arrest, Duncan shut his vehicle's door and drove away. Officer Gray pursued. For several miles he and other officers—including Deputy Jimmy Ward of the Bibb County Sheriff's Department and Officer Shane Deason of the Brent Police Department—chased Duncan down city streets and state highways.

Eventually the chase ended. Duncan turned down a dirt road, stopped, opened his door, and stepped out of his vehicle. The officers also stopped, exited their own vehicles, drew their service weapons, and ordered Duncan to "show his hands." Officers then noticed a pistol in Duncan's left hand. Deputy Ward and Officer Deason opened fire. Ward fired nine times and Deason fired once. Duncan sustained gunshot wounds to his right calf, his right shoulder, his left wrist, and to the left side of his neck.

Duncan survived his injuries and filed claims under 42 U.S.C. § 1983 and Alabama tort law. He alleges, among other things, that Deputy Ward and Officer Deason violated his Fourth Amendment right to be free from excessive force.³ Deputy Ward and Officer Deason moved for summary judgment.

II

A successful summary judgment motion shows there is no genuine dispute as to any material fact and that the plaintiff deserves judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists, and summary judgment is not appropriate, if "the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor." Greenberg v. BellSouthTellecomms, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)).

At summary judgment district courts view all evidence and draw all justifiable inferences in the nonmoving party's favor. Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir. 1990). Then we determine "whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, 477 U.S. 242, 250-51 (1986).

III

Deputy Ward and Officer Deason moved for summary judgment on Duncan's excessive-force claims. Both believe their use of force was a reasonable and lawful response to Duncan's conduct. They alternatively argue that their use of force, even if excessive, violated no clearly established law. This Court agrees on both fronts.

First to the merits. The Fourth Amendment's "reasonableness standard" governs Duncan's excessive-force claims. Plumhoff v. Rickard, 572 U.S. 765, 774 (2014). This standard "requires a careful balancing of the nature and quality of the intrusion on [Duncan's] Fourth Amendment interests against the countervailing governmental interest at stake." Id. (quoting Graham, 490 U.S. at 396). It asks whether a reasonable officer in Deputy Ward and Officer Deason's situation wouldbelieve the level of force used was "necessary in the situation at hand." Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (quoting Willingham v. Loughnan, 261 F.3d 1178, 1186 (11th Cir. 2001)). If the answer to that question is yes, then a plaintiff's excessive-force claim fails as a matter of law.

To evaluate the reasonableness of an officer's use of force, the Court considers a variety of factors, including "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Perspective is crucial: "[t]he only perspective that counts is that of a reasonable officer on the scene at the time the events unfolded." Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir. 2009).

Deputy Ward and Officer Deason did not use excessive force. Three factors weigh in their favor. For one, Duncan resisted and evaded arrest. He defied Officer Gray's orders, he led officers on an extended car chase, and he gave no indication of surrender. Second, a reasonable officer would believe Duncan posed an immediate threat to officer safety. After all, he stepped out of his vehicle with a loaded firearm in hand; multiple officers were exposed and within range of Duncan's weapon. Third, nothing suggests Deputy Ward and Officer Deason continued firing once the threat abated. Nothing, for instance, suggests they continued firing once Duncandropped his firearm or surrendered to arrest. See Plumhoff, 572 U.S. at 778 ("It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat is over."). Considering each of these factors, any reasonable officer in the same situation—any reasonable officer in range of a noncompliant and armed suspect—would respond with comparable force. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) ("[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, it is not constitutionally unreasonable to prevent escape by using deadly force."); Hunter v. City of Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) ("It is axiomatic that when an officer is threatened with deadly force, he may respond with deadly force to protect himself.").⁴

This was precisely the "tense, uncertain, and rapidly evolving" situation envisioned by the Supreme Court in Graham, 490 U.S. at 397. Because DeputyWard and Officer Deason responded lawfully and consistent with the demands of the Fourth Amendment, Duncan's excessive-force claims fail as a matter of law.

But even if Deputy Ward and Officer Deason used excessive force, their motions for summary judgment are due to be granted. Both are entitled to qualified immunity.

Qualified immunity shields federal and state officials from money damages unless a plaintiff shows "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A right becomes clearly established when the contours of the right are so clear a reasonable officer "would understand that what he is doing violates the law." Anderson v. Creighton, 483 U.S. 635, 640 (1987). So even if an officer uses excessive force and violates a suspect's constitutional rights, he remains immune from 42 U.S.C. § 1983 liability unless "existing precedent [has] placed the statutory or constitutional question beyond debate." Id. (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018)).

A plaintiff can show a right was clearly established in one of three ways. Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009). First, he can point the Court to a "materially similar case that has already been decided." Echols v. Lawton, 913 F.3d 1313, 1324-25 (11th Cir. 2019) (citing Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012)). Second, he can point the Court to a "broader, clearly established principle that should control the novel facts of the situation." Id. Third, "the conduct involved in the case may so obviously violate the Constitution that prior case law is unnecessary." Id. Duncan's arguments fail under all three approaches.

Duncan has not cited a "materially similar case" showing Deputy Ward and Officer Deason violated a clearly established right. He relies on two cases: an unpublished Eleventh Circuit opinion and a district court opinion from Georgia. But as a matter of law, neither case can clearly establish a right. See Bailey v. Wheeler, 843 F.3d 473, 483-484 (11th Cir. 2016) (explaining how only binding precedents from the Supreme Court, the Eleventh Circuit, or the Supreme Court of Alabama are relevant to a qualified-immunity analysis). And even if the Court considered Duncan's nonprecedential authority, both cases are readily distinguishable. The first—Greer v. Ivey, 767 F. App'x 706 (11th Cir. 2019)—involved a mentally ill plaintiff who may (or may not) have had a knife in hand when officers shot him. The second—Brown v. Newton County Sheriff's Office, 273 F.Supp. 3d 1142 (N.D. Ga.)—involved a suicidal plaintiff whom officers shot after they "got into safe and protected positions." Neither case involved (1) a noncompliant suspect (2) armed with a loaded handgun and (3) within range of exposed officers.

The most analogous precedent actually cuts against Duncan's claims. In Jean-Baptiste v. Gutierrez, 627 F.3d 816 (11th Cir....