Powell v. Snook

25 F.4th 912

Sharon POWELL, as executrix of the estate of William David Powell, Sharon Powell, Plaintiffs-Appellants,

v.Jennifer SNOOK, as Executrix for the Estate of Patrick Snook, Defendant-Appellee,Annie Davis, et al., Defendants.

No. 19-13340

United States Court of Appeals, Eleventh Circuit.

February 8, 2022

John C. Jones, Law Offices of John C. Jones, Marietta, GA, Keith Clifford Martin, The Frey Law Firm, Jonesboro, GA, Bruce McCord Edenfield, Bruce M. Edenfield, PC, Dahlonega, GA, for Plaintiff - Appellant Sharon Powell

Jason C. Waymire, Williams Morris & Waymire, LLC, Buford, GA, Terry Eugene Williams, Williams Morris & Waymire, LLC, Buford, GA

Before Wilson, Newsom, and Ed Carnes, Circuit Judges.

Ed Carnes, Circuit Judge:

Lawsuits involving claims that officers used deadly force in violation of the Fourth Amendment often involve tragic circumstances. This one does. Just after midnight one evening in June of 2016, Henry County, Georgia, police sergeant Patrick Snook¹ —who was at the wrong house because of imprecise dispatch directions — shot and killed William David Powell, who was innocent of any crime and standing in his driveway. He was holding a pistol because he and his wife thought they had heard a prowler.

Sharon Powell,² David's wife, brought a § 1983 claim against Snook in his individual capacity, alleging that he violated her husband's constitutional right to be free from excessive force. The district court granted Snook's motion for summary judgment on grounds of qualified immunity. This is Powell's appeal.

The qualified immunity issue before us is the familiar one of whether clearly established law put Snook on notice that firing the shots he did violated David Powell's constitutional rights. More specifically, was it clearly established that under the circumstances of this case the Constitution required Snook to warn David Powell before shooting him?

I. SUMMARY JUDGMENT FACTS

Because this case comes to us after a grant of summary judgment, "the facts at this stage are what a reasonable jury could find from the evidence viewed in the light most favorable to" Powell. Cantu v. City of Dothan , 974 F.3d 1217, 1222 (11th Cir. 2020). "[W]hat we state as ‘facts’ in this opinion for purposes of reviewing the ruling[ ] on the summary judgment motion may not be the actual facts. Nonetheless, they are the facts for the present purposes, and we set them out below." Montoute v. Carr , 114 F.3d 181, 182 (11th Cir. 1997).

About five minutes before midnight on June 7, 2016, a Henry County 911 operator spoke to a caller who reported hearing a woman's screams and three gunshots. The caller gave her address as 736 Swan Lake Road and said the noises were coming from "a few houses down." She also said that she had called 911 on an earlier occasion "because they were fighting so bad." The operator searched the 911 call history for 736 Swan Lake but did not find a record of that earlier call.

The caller said that her mother had heard the woman scream "help me please" and then nothing else. After that the operator asked the caller for the "nearest intersecting street." She answered "Fairview Road" and added that the screaming and gunshots had come from "the second or third house past [hers] towards Fairview." (In the call report, the operator noted that Fairview was a cross street but did not include what the caller had told her about the screaming and gunshots having come from the direction of that street.)

The operator asked a follow-up question: "[I]f I'm looking at your house where exactly would their house be?" Once again, the caller said it was a "couple houses down on the right towards Fairview Road." But the operator wrote in her report only that, if a person were looking at the caller's house, the noises had come from two or possibly three houses "down to the right." She omitted the caller's more helpful and less vague direction about the noises being toward Fairview. That is where the seeds of tragedy were sown.

Based on the operator's report, a 911 dispatcher sent police officers to 736 Swan Lake, explaining that if they were "looking at this location, it's two houses down on the right, maybe three houses." Officer Snook, who was in charge of the uniform patrol division that shift, responded to the call with Officers Matthew Davis and Ashley Ramsey. On the way to Swan Lake, Snook asked dispatch if it could find the address for the place where the disturbance had actually occurred. A 911 call center supervisor, who had replaced the earlier dispatcher during midnight shift-change, replied that dispatch thought it was "either 690 or 634." The Powells lived at 690 Swan Lake.

The three officers, who all wore police uniforms, parked their cars along the roadway with their blue lights off. Before approaching the Powells’ house, Officer Davis asked the supervisor why dispatch believed 690 was the correct location and asked him to get more information from the caller. When the supervisor dialed the number that had originally called 911, the original caller's mother answered and agreed with the supervisor that the sounds had come from "the right, south of [the caller's location] going towards Gardner [Road]." From the perspective of a person standing on Swan Lake Road and looking at house 736, the Powells’ house is to the right and toward Gardner Road.

Based on the 911 dispatch information, the officers approached the Powells’ house, which could not be seen from the road because of its long driveway. As the officers walked down that long driveway, there were no lights on inside or outside the house. It was very dark. Because they were going to a call involving domestic violence with shots fired, the officers approached cautiously, trying to avoid being targets for a shooter. Snook carried a rifle because of the dangerous circumstances and in case long-range fire was necessary.

There were two trucks at the house, which the supervisor told Snook were registered to the Powells, a couple in their sixties. The supervisor also told Snook that previous 911 calls for the Powells’ house had involved an alarm and an ambulance. Snook knew from his experience that alarm or ambulance calls sometimes grew out of domestic violence incidents, but he also knew, because the supervisor had told him, that police had not been dispatched to the Powells’ house before for a domestic violence incident.

Snook sent Ramsey to cover the back of the house while he and Davis stayed out front. Snook was close to the driveway area. He took his flashlight to look in the windows, but he didn't see any damage or lights on inside the house and didn't hear any screaming. Sharon Powell, who was inside, didn't hear any knocks on her door or rings of her doorbell, but she did hear her dogs barking, which had awakened her and David.

The two of them got out of bed but did not check their front door. Instead, David went to the laundry room door, looked out the window, and told Sharon that he saw someone outside. He went to his closet, put on his pants, and got his pistol. He then walked through a kitchen door into an attached garage and pushed a button that caused the garage door to begin opening and the garage light to come on. All the other house lights were still off.

It takes the garage door 8.8 seconds to open. When the door had fully opened, David walked out onto the driveway holding the loaded pistol in his right hand. After walking 10 to 15 steps at a normal pace, which took about nine seconds,³ he stopped and turned to face the walkway leading up to his front door, which is where Officer Snook was positioned in the dark. When David Powell stopped walking, he was standing straight up and his arms were pointed straight down with the pistol in his right hand.

Sharon Powell had followed David onto the driveway and stood four or five feet behind him. She was facing his right side, focused on him, watching him. She heard no noise or voice, either while the garage door was opening or after she and her husband went outside. She specifically did not hear anyone identify themselves as police officers. It was perfectly quiet.

Sharon Powell had a sense that David was looking at someone. He started to raise his right arm — the one holding the pistol — and got the pistol hip-high. While David was doing that, Snook went down to one knee to make himself a smaller target and rapidly fired three shots with his rifle. Sharon testified that only a "very short time" –– "[l]ike one second it felt like" –– passed between when David started to raise his gun and when Snook began firing.⁴

After Snook fired, David dropped to the ground. Sharon screamed, ran into the house, locked the door, and called 911. The officers on the scene aided David and called for an ambulance that took him to the hospital, but he died the next day.

II. PROCEDURAL HISTORY

On her own behalf and as executrix of her husband's estate, Sharon Powell filed a 42 U.S.C. § 1983 complaint in the Northern District of Georgia explicitly claiming that Snook violated David Powell's Fourth and Fourteenth Amendment rights and less explicitly claiming that Snook committed the tort of negligence in the process.⁵

The parties eventually stipulated to the dismissal of all claims against Snook except for the Fourth Amendment excessive force claim, and Snook filed a motion for summary judgment contending that he was entitled to qualified immunity on that claim.

Powell opposed that motion, contending that Snook was not entitled to qualified immunity because precedent, specifically Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and our case law applying it, clearly established that he could not constitutionally use deadly force against David Powell without first identifying himself as a police officer and issuing a warning. Powell argued Snook could have "easily" given that warning because David was not an immediate threat, refusing any officer's command, or attempting to escape. She asserted that our case law...